State v. Davis, 89-01301
| Decision Date | 18 April 1990 |
| Docket Number | No. 89-01301,89-01301 |
| Citation | 559 So.2d 1279 |
| Parties | 15 Fla. L. Weekly D1058 STATE of Florida, Appellant, v. Christopher Cardale DAVIS, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wendy Buffington, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, Bartow, and Kevin Briggs, Asst. Public Defender, Bartow, for appellee.
The State of Florida appeals Davis's sentence of ten years' probation which the trial court imposed after finding Davis to be a habitual felony offender. The state maintains that the trial court erred in imposing a sentence which is effectively a downward departure from the recommended sentencing guidelines range of three and one-half to four and one-half years in state prison. The state argues that imposition of the sentence is in derogation of the purpose of the habitual offender statute which is to provide for enhanced penalties for habitual offenders.
We must dismiss this appeal for lack of jurisdiction. The state's right to appeal is very limited. Florida Rule of Appellate Procedure 9.140 provides:
(1) Appeals Permitted. The State may appeal an order:
(A) Dismissing an indictment or information or any count thereof;
(B) Suppressing before trial confessions, admissions or evidence obtained by search and seizure;
(C) Granting a new trial;
(D) Arresting judgment;
(E) Discharging a defendant pursuant to Fla.R.Crim.P. 3.191;
(F) Discharging a prisoner on habeas corpus;
(G) Adjudicating a defendant incompetent or insane;
(H) Ruling on a question of law when a convicted defendant appeals his judgment of conviction; and may appeal
(I) An illegal sentence;
(J) A sentence imposed outside the range recommended by the guidelines authorized by Section 921.001, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.701.
Fla.R.App.P. 9.140(c)(1). Only the last two circumstances pertain to sentencing. The ten years' probation is not an illegal sentence. The trial judge tried and found Davis guilty of a third-degree felony. The habitual felony offender statute provides that the court shall sentence the defendant guilty of a third-degree felony to a term of years not exceeding ten. § 775.084(4)(a)3, Fla.Stat. (Supp.1988). Also the last circumstance, a sentence imposed outside the recommended sentencing guidelines range, is inapplicable because a sentence imposed under the habitual offender statute is not subject to the sentencing guidelines. See § 775.084(4)(e), Fla.Stat. (Supp.1988). Accordingly, the state has no right to appeal Davis's sentence.
Although we agree with the state that the legislature never intended for a habitual felony offender to receive a less severe sentence than if the defendant had been sentenced...
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...of this court. Walsingham v. State, 576 So.2d 365 (Fla. 2d DCA 1991); State v. Allen, 573 So.2d 170 (Fla. 2d DCA 1991); State v. Davis, 559 So.2d 1279 (Fla. 2d DCA 1990). First, we reject appellant's argument that a sentence of community control following habitualization of a defendant is i......
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Steiner v. State, 90-01378
...for the reasons explained below. In so finding I would recede from this court's prior decision to the contrary in State v. Davis, 559 So.2d 1279 (Fla. 2d DCA 1990). Nonetheless, as also explained below, I would reverse this particular case only on the basis employed by the majority Defendan......
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Bateman v. State, 89-1080
...habitual offender sentences from the sentencing guidelines. See Owens v. State, 560 So.2d 1260 (Fla. 1st DCA 1990); State v. Davis, 559 So.2d 1279 (Fla. 2d DCA 1990); King v. State, 557 So.2d 899 (Fla. 5th DCA), rev. denied, 564 So.2d 1086 (1990). Therefore, the judgment and sentence are AN......