Davis v. State, 86-799

• Decision Date: 06 November 1987
• Docket Number: No. 86-799,86-799
• Citation: Davis v. State, 514 So.2d 1155, 12 Fla. L. Weekly 2554 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 2554 Robert Lloyd DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1155

514 So.2d 1155

12 Fla. L. Weekly 2554

Robert Lloyd DAVIS, Appellant, v. STATE of Florida, Appellee.

No. 86-799.

District Court of Appeal of Florida Second District.

Nov. 6, 1987.

James Marion Moorman, Public Defender and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and William I. Munsey, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Judge.

Appellant raises four points on appeal. We find merit in two. First, appellant contends that the trial court improperly sentenced appellant as an habitual offender. We agree. The court's reference to appellant's prior convictions did not in and of itself show that the public was at risk absent an extended sentence. "Reference to appellant's 'continuing criminal activity' is inadequate without additional analysis or findings of fact in support thereof." Sims v. State, 487 So.2d 37 (Fla. 2d DCA 1986).

Second, appellant contends the trial court erred in using habitual offender status as a reason for departure from the sentencing guidelines recommended sentence. We agree.

Subsequent to the sentencing herein, the Florida Supreme Court decided Whitehead v. State, 498 So.2d 863 (Fla.1986). In Whitehead, the Florida Supreme Court held that habitual offender status is not a legitimate reason to depart from the sentencing guidelines recommended sentence.

Consequently, we reverse the sentence herein and remand for resentencing within the...