King v. State, 4-86-1726
| Decision Date | 09 September 1987 |
| Docket Number | No. 4-86-1726,4-86-1726 |
| Citation | 12 Fla. L. Weekly 2165,511 So.2d 1131 |
| Parties | 12 Fla. L. Weekly 2165 Johnny Lee KING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Michael W. Baker, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant Johnny Lee King was convicted of possession of cocaine, a third degree felony carrying a statutory maximum penalty of five years' imprisonment. The recommended guidelines sentence range on appellant's scoresheet was five and one-half to seven years' imprisonment. The trial court adjudged appellant a habitual offender under section 775.084, Florida Statutes (1985), and sentenced him to seven years in prison.
Appellant contends that the trial court erred in sentencing him as a habitual offender because (1) the court's findings did not warrant application of that statute, and (2) the habitual offender statute is no longer viable, relying upon Whitehead v. State, 498 So.2d 863 (Fla.1986).
To justify its resort to the habitual offender statute the trial court made specific findings on the record, which we hold constitute a sufficient basis for application of that statute. Furthermore, we reject appellant's second contention that the habitual offender statute is no longer available to the trial courts in the sentencing process because of the supreme court's decision in Whitehead. Reliance on Whitehead for that contention is misplaced. In our view, a careful reading of this decision reflects that the holding of the court was that the habitual offender statute is no longer a clear and convincing reason to depart from the guidelines recommended sentence. Whitehead does not hold that section 775.084, Florida Statutes (1985), cannot be used to enhance a sentence as long as it does not exceed the guidelines recommended sentence. Therefore, it appears appropriate to us for the trial court to resort to the habitual offender statute to enhance appellant's sentence beyond the statutory maximum, so long as it remains within the guidelines recommended range.
According to our research, all but one of the cases decided since Whitehead have construed that decision to allow use of the habitual offender statute as we propose to apply it in the present case. See Hall v. State, 511 So.2d 1038 (Fla. 1st DCA 1987); Smith v. Wainwright, 508 So.2d 768 (Fla. 2d DCA 1987); Hoefert v. State, 509 So.2d 1090...
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Inscho v. State
...2d DCA 1987); Reid v. State, 512 So.2d 1161 (Fla. 3d DCA 1987); Condiles v. State, 512 So.2d 331 (Fla. 3d DCA 1987); King v. State, 511 So.2d 1131 (Fla. 4th DCA 1987); Hall v. State, 511 So.2d 1038 (Fla. 1st DCA 1987); Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987); Smith v. Wainwright......
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...pre-1988 version of the statute. State v. Brown, 530 So.2d 51 (Fla.1988); Whitehead v. State, 498 So.2d 863 (Fla.1986); King v. State, 511 So.2d 1131 (Fla. 4th DCA 1987), approved, 520 So.2d 582 (Fla.1988). The trial court here gave no other written or oral reason for departure. Therefore, ......
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...the sentence does not exceed the recommended guidelines range. See Condiles v. State, 512 So.2d 331 (Fla.3d DCA 1987); King v. State, 511 So.2d 1131 (Fla.4th DCA 1987); Hoefert v. State, 509 So.2d 1090 (Fla.2d DCA 1987); Smith v. Wainwright, 508 So.2d 768 (Fla.2d DCA 1987); Winters v. State......
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