Holmes v. State, BM-177
| Decision Date | 23 February 1987 |
| Docket Number | No. BM-177,BM-177 |
| Citation | 12 Fla. L. Weekly 597,502 So.2d 1302 |
| Parties | 12 Fla. L. Weekly 597 Horace Lee HOLMES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant contends the trial court erred in two respects. First, it erred in determining him to be an habitual offender. Second, it erred in basing a departure sentence on the habitual offender findings.
Departure based on the habitual offender findings is invalid. Whitehead v. State, 498 So.2d 863 (Fla.1986).
The first issue requires further consideration as it would permit the trial court to sentence up to 5 1/2 years within the guidelines on a third degree felony otherwise statutorially limited to 5 years. The trial court failed to make essential findings as required by section 775.084(3), Florida Statutes (1985), that an extended term of imprisonment was "necessary for the protection of the public." The case must be remanded for the trial court to make the required findings, if it can. The trial court may still make a determination that an enhanced sentence under the habitual offender statute is needed. Once it does so, the trial court may then consider whether to sentence up to the guidelines limit or, upon clear and convincing reasons, impose a departure sentence up to the new cap of 10 years. Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1986); Winters v. State, 500 So.2d 303 (Fla. 1st DCA 1986).
The case is REVERSED and REMANDED for further sentencing proceedings.
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Hall v. State
...for valid reasons other than habitual-offender status, Hester v. State, 503 So.2d 1342, 1346 (Fla. 1st DCA 1987); Holmes v. State, 502 So.2d 1302 (Fla. 1st DCA 1987). The limited record before us suggests that Hall's habitual-offender status was based entirely upon his prior record and reve......
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...sentenced within the recommended range of the guidelines); Winters v. State, 500 So.2d 303 (Fla. 1st DCA 1986) (same); Holmes v. State, 502 So.2d 1302 (Fla. 1st DCA 1987) (on resentencing, trial court authorized, upon clear and convincing reasons, to impose a departure sentence up to the ex......
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McMillan v. State, 87-1933
...sentence. The validity of such a sentence was recognized in Hall v. State, 511 So.2d 1038 (Fla.1st DCA 1987), and Holmes v. State, 502 So.2d 1302 (Fla.1st DCA 1987). In Hester v. State, 503 So.2d 1342 (Fla.1st DCA 1987), a similar sentence was affirmed. We agree with the conclusions in thes......
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Jones v. State, 87-1144
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