ADRIAN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court grants the appellee's motion for certification of conflict, finding a divergence with the Second District's approach to sentencing guideline amendments.
The court previously reversed and remanded a case concerning a 1995 guidelines departure sentence. The Second District Court of Appeal has taken a dif…
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PER CURIAM.
We reverse and remand for a determination of whether it can be shown that the trial court would have imposed the same 1995 guidelines departure sentence under the 1994 guidelines. See Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000). If such showing cannot be made, then resentencing is required under Heggs v. State, 759 So. 2d 620 (Fla.2000).
STEVENSON, GROSS and TAYLOR, JJ., concur. ON MOTION FOR CERTIFICATION OF CONFLICT
PER CURIAM.
We grant appellee’s motion for certification of conflict. In our original opinion, we reversed and remanded for a determination of whether it could be shown that the trial court would have imposed the same 1995 guidelines departure sentence under the 1994 guidelines. See Heggs v. State, 759 So. 2d 620 (Fla.2000); Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000).
In Ray v. State, 772 So. 2d 18 (Fla. 2d DCA 2000), and Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000), the Second District found that the defendants were not adversely affected by the unconstitutional amendments to the sentencing guidelines because the records reflected that the trial courts imposed the upward departure sentences based on statutory factors that were equally valid under the 1994 and 1995 sentencing guidelines. The Second District, therefore, does not require a showing that the trial court would have imposed the departure sentence under the 1994 guidelines, but, instead, requires only a showing that the trial court could have imposed the same departure sentence. Thus, we certify conflict with both Ray and Kwil.
STEVENSON, GROSS and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Gwenda Jean Lemon, 825 So. 2d 927 (Fla. 2002)…to her sentences in other cases and that all counts in the instant case were to run concurrent to each other. . We note that subsequent to the opinion in Lemon, the Fourth District has certified conflict with both Ray and Kwil. See Davis v. State, 791 So. 2d 1137, 1138 (Fla. 4th DCA 2001). . Webster’s Dictionary defines "can” (present tense of "could”) as "to be able to do, make, or accomplish.” Merriam Webster’s Collegiate Dictionary 165 (10th ed.1999). It defines "would” as "wished, desired.” Id. at 1365.…
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State v. Davis, 863 So. 2d 138 (Fla. 2003)…PER CURIAM. We have for review the decision in Davis v. State, 791 So. 2d 1137 (Fla. 4th DCA 2001), which certified conflict with the decisions in Ray v. State, 772 So. 2d 18 (Fla. 2d DCA 2000), review denied, 791 So. 2d 1100 (Fla.2001), and Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000). We have jurisdiction. See Art. V, §…
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Alphonso Fletcher v. State, 800 So. 2d 626 (Fla. 4th DCA 2001)…. State, 800 So. 2d 626 (Fla. 4th DCA 2001). Appellee requests that we certify conflict with Ray v. State, 772 So. 2d 18 (Fla. 2d DCA 2000) and Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000), and we do so in this opinion. See also Davis v. State, 791 So. 2d 1137 (Fla. 4th DCA 2001)(certifying same conflict). GUNTHER, STONE and FARMER, JJ., concur.…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- RAY v. State, 772 So. 2d 18 (Fla. 2d DCA 2000)
- Gwenda Jean Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000)
- Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000)
- Kelly v. State, 768 So. 2d 502 (Fla. 2d DCA 2000)