CLARENCE LARRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions for robbery and kidnapping affirmed, but kidnapping sentence remanded for correction because it was improperly marked as a habitual offender sentence when armed kidnapping is not subject to habitualization.
Armed kidnapping sentences cannot be imposed as habitual offender sentences because armed kidnapping is a life felony not subject to the habitual offender statute.
[1] Armed kidnapping, being a life felony, is not subject to the habitual offender statute under Florida law.
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Join FLexlaw to unlock all legal intelligence“Armed kidnapping is a life felony, thus is not subject to the habitual offender statute.”
Court explaining why the kidnapping sentence cannot be imposed as a habitual offender sentence
Appellant was convicted of two counts of robbery with a firearm and one count of kidnapping with a firearm. He was sentenced as a habitual offender fo…
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CAMPBELL, Judge.
Appellant challenges his convictions and sentences for two counts of robbery with a firearm and one count of kidnapping with a firearm.
Appellant argues that the written sentence for kidnapping must be corrected because it improperly reflects that he was sentenced as an habitual offender when in fact he was not. He was habitualized for the robbery counts but not for the kidnapping. Armed kidnapping is a life felony, thus is not subject to the habitual offender statute. Section 775.087(l)(a), Fla.Stat. (1989); Pelham v. State, 595 So. 2d 581 (Fla. 2d DCA 1992). Clearly, the habitual offender box was checked by mistake. We remand for the kidnapping sentence to be corrected so as to reflect it was not an habitual offender sentence.
Next, appellant argues that it was error to impose additional incarceration consecutive to the habitualized sentence because that resulted in an illegal departure from the guidelines. A guidelines sentence consecutive to a nonguidelines sentence is not a departure sentence. Boomer v. State, 596 So. 2d 730 (Fla. 2d DCA), juris, accepted, 604 So. 2d 486 (Fla.1992). In Boomer, we recognized conflict with Wood v. State, 593 So. 2d 557 (Fla. 5th DCA 1992). We affirm appellant’s sentence based on Boomer and continue to express conflict with Wood.
Finding no merit in appellant’s other arguments, we affirm the judgment and sentences except we remand for correction of the kidnapping sentence.
DANAHY, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ellis R. Mason v. State, 665 So. 2d 328 (Fla. 5th DCA 1995)…nder sentence on the kidnapping charge. Because kidnapping is a life felony, it cannot be enhanced to habitual offender status. §§ 775.084(4)(b) and 775.087(1)(a), Fla.Stat. (1993); Houck v. State, 637 So. 2d 298 (Fla. 1st DCA 1994); Larry v. State, 616 So. 2d 603 (Fla. 2d DCA 1993); Hayes v. State, 598 So. 2d 135, 136 (Fla. 5th DCA 1992). That sentence is vacated and remanded for resentencing. The final issue involves the viability of the aggravated assault conviction. During the course of the crimes the vi…
Authorities Cited
- Wood v. State, 593 So. 2d 557 (Fla. 5th DCA 1992)
- Boomer v. State, 596 So. 2d 730 (Fla. 2d DCA 1992)
- Pelham v. State, 595 So. 2d 581 (Fla. 2d DCA 1992)