NELSON LUIS PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nelson Luis Perez appealed sentences imposed across four criminal cases. The court affirmed sentences in cases where Perez was properly adjudicated as a habitual felony offender with written notice, but reversed and remanded two sentences that exceeded sentencing guidelines without written reasons for departure as required by statute.
The court affirmed sentences in cases 96-746 and 96-2921 where habitual felony offender sentencing was properly imposed with written notice. The court reversed and remanded sentences in cases 95-12345 and 96-3632 because they exceeded sentencing guidelines without the required written statement of reasons for departure under section 921.0016(l)(c), Florida Statutes.
[1] A departure sentence exceeding sentencing guidelines requires a written statement of reasons for the departure.
[2] Sentences imposed as a habitual felony offender are affirmed when proper notice was given and no error is found.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The sentences imposed in ease numbers 95-12345 and 96-3632 exceed the sentences permitted by the sentencing guidelines. The record does not contain a written statement delineating reasons for the departure, as required by section 921.0016(l)(c), Florida Statutes (1995).”
Establishes the core error requiring reversal: sentences exceeding guidelines without required written statement of reasons.
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Join FLexlaw to unlock all legal intelligencePerez was convicted and sentenced in four separate circuit court cases (96-746, 96-2921, 95-12345, and 96-3632). In cases 96-746 and 96-2921, the stat…
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PER CURIAM.
Nelson Luis Perez appeals sentences imposed for numerous convictions in four separate cases. The sentences imposed in two of the cases exceed the sentences recommended by the sentencing guidelines, and no written reasons for departure were filed. We, therefore, reverse those sentences, but affirm the remaining sentences.
In circuit court ease numbers 96-746 and 96-2921, Perez received written notice of the state s intention to seek habitual felony offender penalties. He was thereafter found to be a habitual felony offender and was sentenced as such. Perez does not allege, nor do we find, error in the imposition of those sentences. We, therefore, affirm those sentences.
In circuit court case numbers 95-12345 and 96-3632, the state did not file habitual offender notices, and the trial court did not sentence Perez as a habitual felony offender. In each of those cases, Perez was sentenced to five years in prison, concurrent with the other sentences. The sentences imposed in ease numbers 95-12345 and 96-3632 exceed the sentences permitted by the sentencing guidelines. The record does not contain a written statement delineating reasons for the departure, as required by section 921.0016(l)(c), Florida Statutes (1995). We, therefore, reverse and remand for resentencing. It appears from the transcript of the sentencing proceeding that the trial court was not aware the sentences imposed exceeded the guidelines. Thus, the trial court may again impose a departure sentence on remand, upon compliance with section 921.0016(l)(e). See State v. Vanhorn, 561 So. 2d 584 (Fla.1990).
Although not raised by the parties, we found errors in the sentencing guidelines scoresheet filed in case number 96-3632. The scoresheet lists improper exhibition of a dangerous weapon as an additional offense. This charge, however, was nolle prossed by the state. The scoresheet also ineludes points for offenses on which Perez was sentenced as a habitual felony offender. This was error. See Watson v. State, 658 So. 2d 118 (Fla. 2d DCA 1995); Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992). The score-sheet should be corrected on remand.
Affirmed in part; reversed in part, and remanded for resentencing.
CAMPBELL, A.C.J., and THREADGILL and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rivers v. State, 980 So. 2d 599 (Fla. 2d DCA 2008)…enses the counts in case number 03-3153 for which Rivers had been sentenced as a habitual felony offender and we agree. Olsen v. State, 791 So. 2d 558, 560 (Fla. 2d DCA 2001); Drayton v. State, 744 So. 2d 584, 585 (Fla. 2d DCA 1999); Perez v. State, 703 So. 2d 1131, 1132 (Fla. 2d DCA 1997). However, this error was not properly preserved by Rivers below. Affirmed in part, reversed in part, and remanded for resentencing with Rivers present. DAVIS and SILBERMAN, JJ., Concur.…
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Allison v. State, 723 So. 2d 882 (Fla. 2d DCA 1998)…cing hearing reflects the trial court’s lack of awareness that it was departing from the sentencing guidelines. On remand, the trial court may depart from the guidelines, but it must file written reasons to support the departure. See Perez v. State, 703 So. 2d 1131 (Fla. 2d DCA 1997). [*883] We reverse the sentences in case numbers 92-1547 and 98-429 and remand for resen-tencing in accordance with this opinion. PARKER, C.J., and FULMER, J., Concur.…
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McLEOD v. State, 782 So. 2d 472 (Fla. 2d DCA 2001)…ing in these cases. See Allison v. State, 728 So. 2d 882 (Fla. 2d DCA 1998). On remand, if a sentence departing from the sentencing guidelines is again imposed, the trial court shall give written reasons to support the departure. See Perez v. State, 703 So. 2d 1131 (Fla. 2d DCA 1997). We find no merit in McLeod’s additional argument that the trial court was without jurisdiction to change her community control to probation in case number 98-11931. Reversed and remanded for resentenc-ing in accordance with thi…
Authorities Cited
- Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992)
- State v. Vanhorn, 561 So. 2d 584 (Fla. 1990)
- Watson v. State, 658 So. 2d 118 (Fla. 2d DCA 1995)