Brady v. State, No. 83-2457
| Court | Florida District Court of Appeals |
| Writing for the Court | OTT |
| Citation | 457 So.2d 544 |
| Parties | Richard Lynn BRADY, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 05 October 1984 |
| Docket Number | No. 83-2457 |
Page 544
v.
STATE of Florida, Appellee.
Second District.
Page 545
Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
OTT, Judge.
Brady appeals his three-year sentence under section 775.084, Florida Statutes (1983), the habitual felony offender statute. He argues that the court erred in exceeding the sentence recommended by the sentencing guidelines, rules 3.701 and 3.988, Florida Rules of Criminal Procedure. We affirm.
Brady's sentence was within the range set forth in section 775.084. We hold that the habitual felony offender statute is a viable alternative to the sentencing guidelines. The Committee Note to rule 3.701(d)(11) in existence when Brady was sentenced, while not specifically referring to the habitual offender statute, recognized other alternatives to the guidelines. 1 See also Massaro v. State, 449 So.2d 1010 (Fla. 2d DCA 1984); Sweat v. State, 454 So.2d 749 (Fla. 1st DCA 1984). The supreme court recently eliminated this note. See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988--Sentencing Guidelines), 451 So.2d 824 (Fla.1984). However, the court acknowledged the existence of statutory alternatives to
Page 546
the guidelines. Id., at 824 n. 12. Unless and until the Legislature repeals section 775.084, we conclude that courts may utilize it provided they comply with its requirements and adequately state the reasons for departing from the guidelines. In the case sub judice, the judge complied with the habitual offender statute by finding that sentencing as an habitual offender was necessary to protect the public. This is a clear and convincing reason for departing from the guidelines.In our case, no written reasons for departure from the guidelines appear in the record. However, the trial judge clearly stated the reasons in the record. This is sufficient. See Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984). We do, however, caution and encourage judges to record in writing their reasons for departing from the guidelines.
AFFIRMED.
SCHOONOVER and LEHAN, JJ., concur.
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1 The relevant portion of Committee Note to 3.701(d)(11) provided:
Sentences under provisions of the Youthful...
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Mischler v. State, No. 84-151
...1st DCA 1984); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So.......
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Pease v. State, No. 87571
...Page 378 It was originally thought by some courts that the reason for departure could be announced orally at sentencing. Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), quashed, 483 So.2d 404 (Fla.1985). However, writing for a unanimous ......
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Morganti v. State, No. 87-0312
...the Guidelines. However, three other Districts had, and all had held that it was a valid reason for departure. See, e.g., Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Smith v. State, 461 So.2d 995 (Fla. 5th DCA 1984); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985). We presume th......
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Whitfield v. State, No. 84-2044
...v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), and more than one opinion of the Second District Court of Appeal, including Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984). The conflict has been resolved, however. In Jackson the Florida supreme court rejected the state's contention that a tr......
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Mischler v. State, No. 84-151
...1st DCA 1984); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So.......
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Pease v. State, No. 87571
...Page 378 It was originally thought by some courts that the reason for departure could be announced orally at sentencing. Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), quashed, 483 So.2d 404 (Fla.1985). However, writing for a unanimous ......
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Morganti v. State, No. 87-0312
...the Guidelines. However, three other Districts had, and all had held that it was a valid reason for departure. See, e.g., Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Smith v. State, 461 So.2d 995 (Fla. 5th DCA 1984); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985). We presume th......
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Whitfield v. State, No. 84-2044
...v. State, 456 So.2d 1245 (Fla. 5th DCA 1984), and more than one opinion of the Second District Court of Appeal, including Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984). The conflict has been resolved, however. In Jackson the Florida supreme court rejected the state's contention that a tr......