Butler v. State, s. 88-1079
| Decision Date | 20 June 1989 |
| Docket Number | Nos. 88-1079,88-1009,s. 88-1079 |
| Citation | 14 Fla. L. Weekly 1491,545 So.2d 447 |
| Parties | 14 Fla. L. Weekly 1491 Roy BUTLER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeals from the Circuit Court for Dade County; Howard Gross, Judge.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Joan L. Greenberg, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.
As the parties agree, four of the five grounds asserted by the trial judge for the upward departure sentence imposed below are invalid. See Hester v. State, 520 So.2d 273 (Fla.1988); McGriff v. State, 528 So.2d 396 (Fla. 3d DCA 1988), approved, 537 So.2d 107 (Fla.1989); Solomon v. State, 528 So.2d 1367 (Fla. 3d DCA 1988). Under McGriff v. State, 537 So.2d 107 (Fla.1989), since the crime involved occurred prior to the enactment of section 921.001(5), Florida Statutes (1987), the cause is governed by the rule of Albritton v. State, 476 So.2d 158 (Fla.1985), that the trial court must now determine whether to depart on the basis of the one legally sufficient ground--the temporal proximity between the defendant's release from prison and the instant offense. See State v. Jones, 530 So.2d 53 (Fla.1988). The cause is accordingly remanded for resentencing.
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...a valid reason in itself for departure from the sentencing guidelines and such announced rule is the law of this case, Butler v. State, 545 So.2d 447 (Fla. 3d DCA 1989), it would be a manifest injustice to follow such rule in view of the contrary, intervening decision of the Florida Supreme......