Brown v. State, No. BP-379

CourtCourt of Appeal of Florida (US)
Writing for the CourtNIMMONS
Citation509 So.2d 1164,12 Fla. L. Weekly 1528
Parties12 Fla. L. Weekly 1528 Marcus L. BROWN, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. BP-379
Decision Date23 June 1987

Page 1164

509 So.2d 1164
12 Fla. L. Weekly 1528
Marcus L. BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. BP-379.
District Court of Appeal of Florida,
First District.
June 23, 1987.
Rehearing Denied Aug. 5, 1987.

Page 1165

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

Robert A. Butterworth, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.

NIMMONS, Judge.

The defendant appeals from his sentencing guidelines upward-departure sentence of life imprisonment. The sole reason given by the trial court for departure was the defendant's adjudication as an habitual offender under Section 775.084, Florida Statutes. The judge relied expressly upon this court's decision in Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985) which was, during the pendency of this appeal, reversed by the Florida Supreme Court at 498 So.2d 863 (Fla.1986).

The state, however, still urges affirmance. It argues that since the defendant was convicted of a first degree felony, his adjudication as an habitual offender required imposition of a mandatory term of life imprisonment by reason of Section 775.084(4)(a)(1), and that such mandatory sentence takes precedence over the lesser guidelines sentence under Fla.R.Cr.P. 3.701(d)(9).

The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court's Whitehead opinion to preclude reliance upon habitual offender status for departure even where application of the habitual offender statute purports to increase the allowable sentence to a mandatory life term.

REVERSED and REMANDED for resentencing in accordance with applicable law.

SHIVERS and THOMPSON, JJ., concur.

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3 practice notes
  • State v. Brown, No. 71101
    • United States
    • United States State Supreme Court of Florida
    • June 16, 1988
    ...Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent. BARKETT, Justice. We have for review Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987), based on express and direct conflict with Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, ......
  • Poppell v. State, No. BM-362
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 1987
    ...goes, the defendant did obtain a valuable quid pro quo for his agreement to the ten year term. That argument was made in Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987) and The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has c......
  • Bullard v. State, No. BO-361
    • United States
    • Florida District Court of Appeals
    • October 28, 1987
    ...Supreme Court held that habitual offender status is not an adequate reason to depart from the sentencing guidelines. In Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987), this court further ruled that conviction of a first-degree felony coupled with a habitual offender status does not requ......
3 cases
  • State v. Brown, No. 71101
    • United States
    • United States State Supreme Court of Florida
    • June 16, 1988
    ...Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent. BARKETT, Justice. We have for review Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987), based on express and direct conflict with Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, ......
  • Poppell v. State, No. BM-362
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 1987
    ...goes, the defendant did obtain a valuable quid pro quo for his agreement to the ten year term. That argument was made in Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987) and The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has c......
  • Bullard v. State, No. BO-361
    • United States
    • Florida District Court of Appeals
    • October 28, 1987
    ...Supreme Court held that habitual offender status is not an adequate reason to depart from the sentencing guidelines. In Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987), this court further ruled that conviction of a first-degree felony coupled with a habitual offender status does not requ......

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