Brooks v. State, No. BO-129

• Court: Court of Appeal of Florida (US)
• Writing for the Court: NIMMONS
• Citation: 509 So.2d 364,12 Fla. L. Weekly 1484
• Parties: 12 Fla. L. Weekly 1484 Abraham Troy BROOKS, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. BO-129
• Decision Date: 16 June 1987

Page 364

509 So.2d 364 12 Fla. L. Weekly 1484 Abraham Troy BROOKS, Appellant,
v.
STATE of Florida, Appellee. No. BO-129. District Court of Appeal of Florida,
First District. June 16, 1987.

Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Norma J. Mungenast, Asst. Atty. Gen., Tallahassee, for appellee.

NIMMONS, Judge.

The appellant was sentenced as an habitual offender under Section 775.084, Florida Statutes, prior to the Supreme Court's decision in Whitehead v. State, 498 So.2d 863 (Fla.1986). Appellant was sentenced in excess of the sentencing guidelines on multiple third degree felonies. The only justification given for guidelines departure was the Court's finding that the appellant satisfied the criteria as an habitual offender and that it was necessary for the protection of the public from further criminal activity by the appellant to impose an extended term under Section 775.084.

The sentences must be reversed under the holding of Whitehead v. State, supra. If, on remand, the trial court decides to depart from the guidelines, it may not use the appellant's status as an habitual offender as a reason, but must state other clear and convincing reasons for departure. See Avery v. State, 505 So.2d 596 (Fla. 1st DCA 1987).

No issue has been raised by the appellant with respect to the validity of the judgments.

Judgments affirmed, sentences reversed and remanded for resentencing.

SHIVERS and THOMPSON, JJ., concur.