Ferguson v. State, 85-108
| Decision Date | 25 October 1985 |
| Docket Number | No. 85-108,85-108 |
| Citation | 11 Fla. L. Weekly 111,481 So.2d 924 |
| Parties | 11 Fla. L. Weekly 111 Charles FERGUSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Ann N. Radabaugh, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.
Affirmed on the authority of Schevling v. State, 426 So.2d 580 (Fla. 1st DCA 1982), petition for review denied, 431 So.2d 989 (Fla.1983).
ON MOTION FOR REHEARING
Appellant was convicted of a third degree felony, determined to be a habitual felony offender under section 775.084, Florida Statutes (1983), and sentenced to ten years. On appeal, we rejected the substantive issue raised by appellant and affirmed the judgment without opinion. Relying upon the recent decision of Hendrix v. State, 475 So.2d 1218 (Fla.1985), appellant now argues that his sentence constituted an improper departure from the sentencing guidelines. In Hendrix the supreme court held that prior convictions which had been factored into the guidelines scoresheet may not be used to justify a guidelines departure.
Appellant had previously been convicted of five felonies and thirteen misdemeanors. The guidelines recommendation for appellant's sentence was twelve to thirty months incarceration or community control. The reason given for the guidelines departure was that appellant was a habitual felony offender. The predicate felony for the determination that he was a habitual felony offender was factored into the guidelines computation. Thus, appellant contends that his conviction was improperly counted twice contrary to the rule of Hendrix.
In McCuiston v. State, 462 So.2d 830 (Fla. 2d DCA 1985), this court held that sentencing as a habitual offender constituted a clear and convincing reason for departing from the guidelines. Admittedly, proof of a prior felony is an integral part of classifying the defendant as a habitual felony offender. Nevertheless, before a person may be declared a habitual felony offender, the court must also hold a formal hearing and make a finding that the imposition of an enhanced sentence "is necessary for the protection of the public from further criminal activity by the defendant." In making such a finding, the court necessarily considers such matters relating to appellant's conduct and background as are customarily contained in a presentence investigation. See Eutsey v. State, 383 So.2d 219 (Fla.1980). Thus, the determination that a person is a habitual felony offender requires more than a simple consideration of...
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Watson v. State, 85-1496
... ... Contra Hale v. State, 490 So.2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So.2d 924 ... (Fla. 2d DCA 1985); Fleming v. State, 480 So.2d 715 (Fla. 2d DCA 1986) ... Appellant also contends ... ...
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Brown v. State, 85-1729
...to support a departure. Vicknair ; Watson v. State, supra. Contra Hale v. State, 490 So.2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1985); Fleming v. State, 480 So.2d 715 (Fla. 2d DCA The sentence is vacated and the cause is remanded for resentencing. DAUKSCH an......
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Fleming v. State, 85-118
...repeal section 775.084, a result we perceive not to have been intended in the formulation of guidelines sentencing. Ferguson v. State, 481 So.2d 924 (Fla.2d DCA 1985.). It is evident from section 775.084 that the presence of a prior conviction in a defendant's criminal history simply ignite......
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Vicknair v. State
...a useful function under the sentencing guidelines.4 Albritton v. State, 476 So.2d 158 (Fla.1985).5 We recognize that Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1986), and Fleming v. State, 480 So.2d 715 (Fla. 2d DCA 1986), hold otherwise. We also note that the first district in Shull v. ......