Walker v. State, No. BK-75
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | SMITH |
| Citation | 499 So.2d 884,11 Fla. L. Weekly 2631 |
| Decision Date | 16 December 1986 |
| Docket Number | No. BK-75 |
| Parties | 11 Fla. L. Weekly 2631 James Arthur WALKER, Appellant, v. STATE of Florida, Appellee. |
Page 884
v.
STATE of Florida, Appellee.
First District.
Rehearing Denied Jan. 23, 1987.
Page 885
Michael E. Allen, Public Defender, Ann Cocheu, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
SMITH, Judge.
Walker appeals, complaining that his resentencing upon remand, Walker v. State, 473 So.2d 694 (Fla. 1st DCA 1985), violated North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We will not address this point because we find a substantial change in the law which compels us to hold that Walker is entitled to be resentenced.
Appellant was convicted by a jury of attempted second degree murder while in possession of a firearm and two counts of aggravated assault while in possession of a firearm. He elected to be sentenced under the guidelines which recommended a sentence of seventeen to twenty-two years. However, citing the fact that appellant was a habitual offender, the trial court deviated from the guidelines, sentencing appellant to sixty years on the first count (attempted second degree murder while in possession of a firearm) and ten years on each of the other counts, with all sentences to run concurrently. On appeal, this court affirmed appellant's conviction but found his sixty-year sentence to be illegal and unauthorized under the statutes. Since appellant was a habitual felon convicted of a felony of the first degree, this court found he should have been sentenced to life on count 1 rather than a term of years. Because all involved were operating under the erroneous impression that the maximum sentence appellant could receive on count 1 was sixty years and it was highly questionable whether appellant would have elected to be sentenced under the guidelines had he known he faced a mandatory life sentence with no possibility of parole, this court
Page 886
reversed and remanded for resentencing, permitting appellant to withdraw his election to be sentenced under the guidelines if he so desired. See, opinion on remand, 473 So.2d 694.On remand, appellant elected not to be sentenced under the guidelines. The trial court again found appellant to be a habitual offender and sentenced appellant to life in prison on the first count and two concurrent ten-year terms on the other counts....
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State v. King, No. S-07-458.
...But see Raines v. State, 562 So.2d 530 (Ala.Crim.App.1988). 22. Thomas, supra note 21. 23. See id. See, also, Walker v. State, 499 So.2d 884 (Fla.App. 1st Dist.1986); Trasti v. State, 487 So.2d 428 (Fla.App. 5th Dist.1986). But see Parker v. State, 977 So.2d 671 (Fla. App. 4th 24. See Blank......
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Poppell v. State, No. BM-362
...in Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987) and rejected: The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court's Whitehead opinion to preclude reliance upon habitual offender status for depart......
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Brown v. State, No. BP-379
...over the lesser guidelines sentence under Fla.R.Cr.P. 3.701(d)(9). The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court's Whitehead opinion to preclude reliance upon habitual offender status for departu......
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State v. King, No. S-07-458.
...But see Raines v. State, 562 So.2d 530 (Ala.Crim.App.1988). 22. Thomas, supra note 21. 23. See id. See, also, Walker v. State, 499 So.2d 884 (Fla.App. 1st Dist.1986); Trasti v. State, 487 So.2d 428 (Fla.App. 5th Dist.1986). But see Parker v. State, 977 So.2d 671 (Fla. App. 4th 24. See Blank......
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Poppell v. State, No. BM-362
...in Brown v. State, 509 So.2d 1164 (Fla. 1st DCA 1987) and rejected: The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court's Whitehead opinion to preclude reliance upon habitual offender status for depart......
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Brown v. State, No. BP-379
...over the lesser guidelines sentence under Fla.R.Cr.P. 3.701(d)(9). The state's argument must fail because this court in Walker v. State, 499 So.2d 884, 886 (Fla. 1st DCA 1986), has construed the Supreme Court's Whitehead opinion to preclude reliance upon habitual offender status for departu......