Moultrie v. State

District Court of Appeal of Florida

Moultrie v. State

488 So. 2d 558, 11 Fla. L. Weekly 913, 1986 Fla. App. LEXIS 7278

District Court of Appeal of Florida·Decided April 17, 1986·No. No. 85-968·Published·Cited by 3 cases

Opinion

COWART, Judge.

This is another sentencing guideline case. The departure sentence in this case was based on the adjudication of the defendant as an habitual felony offender under section 775.084, Florida Statutes. While the adjudication of habitual felony offender status was sufficient under that statute, it was not based on reasons which, independent of the defendant’s criminal record, justified a departure sentence. Therefore the departure sentence is, indirectly and in substance, inconsistent with Hendrix v. State, 475 So.2d 1218 (Fla. 1985), which disapproves a departure sentence based on the defendant’s criminal record which has been factored into the recommended guideline sentence. See Vicknair v. State, 483 So.2d 896 (Fla. 5th DCA 1986). In addition, the mere reference to “habitual offender” on the guideline scoresheet does not comply with State v. Jackson, 478 So.2d 1054 (Fla.1985), which requires a written statement of reasons for departure.

CONVICTION AFFIRMED; SENTENCE VACATED, CAUSE REMANDED FOR RESENTENCING.

ORFINGER, J., and SCHWARTZ, A., Associate Judge, concur.

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COWART, Judge.

This is another sentencing guideline case. The departure sentence in this case was based on the adjudication of the defendant as an habitual felony offender under section 775.084, Florida Statutes. While the adjudication of habitual felony offender status was sufficient under that statute, it was not based on reasons which, independent of the defendant’s criminal record, justified a departure sentence. Therefore the departure sentence is, indirectly and in substance, inconsistent with Hendrix v. State, 475 So.2d 1218 (Fla. 1985), which disapproves a departure sentence based on the defendant’s criminal record which has been factored into the recommended guideline sentence. See Vicknair v. State, 483 So.2d 896 (Fla. 5th DCA 1986). In addition, the mere reference to “habitual offender” on the guideline scoresheet does not comply with State v. Jackson, 478 So.2d 1054 (Fla.1985), which requires a written statement of reasons for departure.

CONVICTION AFFIRMED; SENTENCE VACATED, CAUSE REMANDED FOR RESENTENCING.

ORFINGER, J., and SCHWARTZ, A., Associate Judge, concur.

Moultrie v. State, 488 So. 2d 558, 11 Fla. L. Weekly 913, 1986 Fla. App. LEXIS 7278 (Fla. Ct. App. 1986).

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