Toro v. State

District Court of Appeal of Florida

Toro v. State

509 So. 2d 960, 12 Fla. L. Weekly 1578, 1987 Fla. App. LEXIS 9035

CourtDistrict Court of Appeal of Florida

DecidedJune 24, 1987

DocketNo. 85-2192

StatusPublished

This text of 509 So. 2d 960 (Toro v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Toro v. State, 509 So. 2d 960, 12 Fla. L. Weekly 1578, 1987 Fla. App. LEXIS 9035 (Fla. Ct. App. 1987).

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Opinion

CAMPBELL, Judge.

Appellant, William Toro, appeals his final judgment and sentence for burglary of a dwelling and grand theft. He was sentenced to a total of ten years imprisonment with seven years for burglary and three years for grand theft. The guidelines recommended a sentence of two-and-one-half to three-and-one-half years. The court based its departure from the guidelines recommendation on the fact that appellant had been adjudged a habitual offender. However, the supreme court has held that the habitual offender status is not a valid reason to depart from the guidelines. Whitehead v. State, 498 So.2d 863 (Fla.1986).

Case law provides that a court must state clear and convincing reasons to justify departure from the guidelines. Here, although the court stated several reasons, they were all based on appellant’s prior record. Since the court stated no other reasons for departure when it sentenced appellant, it may not depart from the guidelines upon. resentencing. Therefore, we remand for resentencing within the guidelines.

SCHEB, A.C.J., and FRANK, J., concur.

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CAMPBELL, Judge.

Appellant, William Toro, appeals his final judgment and sentence for burglary of a dwelling and grand theft. He was sentenced to a total of ten years imprisonment with seven years for burglary and three years for grand theft. The guidelines recommended a sentence of two-and-one-half to three-and-one-half years. The court based its departure from the guidelines recommendation on the fact that appellant had been adjudged a habitual offender. However, the supreme court has held that the habitual offender status is not a valid reason to depart from the guidelines. Whitehead v. State, 498 So.2d 863 (Fla.1986).

Case law provides that a court must state clear and convincing reasons to justify departure from the guidelines. Here, although the court stated several reasons, they were all based on appellant’s prior record. Since the court stated no other reasons for departure when it sentenced appellant, it may not depart from the guidelines upon. resentencing. Therefore, we remand for resentencing within the guidelines.

SCHEB, A.C.J., and FRANK, J., concur.

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Bluebook (online)

509 So. 2d 960, 12 Fla. L. Weekly 1578, 1987 Fla. App. LEXIS 9035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toro-v-state-fladistctapp-1987.

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