Morganti v. State, No. 87-0312

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WEBSTER, PETER D.
• Citation: 510 So.2d 1182,12 Fla. L. Weekly 1960
• Docket Number: No. 87-0312
• Decision Date: 12 August 1987
• Parties: 12 Fla. L. Weekly 1960 Patrick Joseph MORGANTI, Appellant, v. STATE of Florida, Appellee.

Page 1182

510 So.2d 1182 12 Fla. L. Weekly 1960 Patrick Joseph MORGANTI, Appellant,
v.
STATE of Florida, Appellee. No. 87-0312. District Court of Appeal of Florida,
Fourth District. Aug. 12, 1987.

Page 1183

Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.

WEBSTER, PETER D., Associate Judge.

Appellant, convicted of robbery after a plea of nolo contendere, appeals his sentence.

Initially, in April 1985, the trial court placed appellant on probation for two years. In July 1985, appellant was charged with having violated the conditions of his probation. A probation revocation hearing was held, and the trial court concluded that appellant had violated the conditions of his probation. After an additional hearing, the trial court concluded that appellant was "an Habitual Felony Offender pursuant to § 775.084, Florida Statutes"; entered a written order to that effect; and, based upon that conclusion, departed from the presumptive Guidelines sentence, sentencing appellant to thirty years in prison on January 27, 1986. Appellant appealed both the conviction and the sentence to this Court.

On January 27, 1986, when the trial court entered the departure sentence based upon appellant's status as an habitual offender, this Court had not yet ruled on the propriety of that reason as a basis for departure from the Guidelines. However, three other Districts had, and all had held that it was a valid reason for departure. See, e.g., Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Smith v. State, 461 So.2d 995 (Fla. 5th DCA 1984); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985). We presume that the trial court was familiar with, and relied upon, these decisions when it departed from the Guidelines based upon appellant's status as an habitual offender. Moreover, on July 16, 1986, while appellant's appeal was pending, this Court decided Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), in which it also held that habitual offender status was a valid reason for departure from the Guidelines.

However, on October 30, 1986, also while appellant's appeal was pending, the Supreme Court reversed the decision of the First District in Whitehead, holding that habitual offender status is not a valid reason for departure from the Guidelines. Whitehead v. State, 498 So.2d 863 (Fla.1986). On November 26, 1986, this Court affirmed appellant's conviction, but reversed the sentence based upon Whitehead, and remanded. Morganti v. State, 498 So.2d 557 (Fla. 4th DCA 1986), approved, 509 So.2d 929 (Fla.1987).

On remand, the trial court again departed from the Guidelines, stating as its reasons that appellant had violated his probation within 92 days of having been placed on probation, after having been incarcerated for thirteen months; and that the violations consisted of possession of PCP, a dangerous controlled substance, and of failing to submit to an evaluation for counseling...