Whitaker v. State, 87-1475

• Decision Date: 11 May 1988
• Docket Number: No. 87-1475,87-1475
• Parties: 13 Fla. L. Weekly 1106 Samuel James WHITAKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1123

524 So.2d 1123

13 Fla. L. Weekly 1106

Samuel James WHITAKER, Appellant, v. STATE of Florida, Appellee.

No. 87-1475.

District Court of Appeal of Florida, First District.

May 11, 1988.

Samuel J. Whitaker, pro se.

Robert A. Butterworth, Atty. Gen., Elizabeth C. Masters, Asst. Atty. Gen., Tallahassee, for appellee.

NIMMONS, Judge.

This is an appeal from an upward departure sentence. The trial court gave the following reasons for departure:

1. The Defendant, by separate Order of this date, has been declared a habitual offender and that a sentence exceeding the guidelines is necessary for the protection of the public.

2. The Defendant's past criminal record indicates that he will continue a life of crime and there is no reason and hope of rehabilitation.

The first reason is invalid. Whitehead v. State, 498 So.2d 863 (Fla.1986); Mitchell v. State, 513 So.2d 1122 (Fla. 4th DCA 1987); Young v. State, 489 So.2d 199 (Fla. 2nd DCA 1986); Gales v. State, 515 So.2d 431 (Fla. 4th DCA 1987). The second reason is also invalid. Hendrix v. State, 475 So.2d 1218 (Fla.1985); Whitehead v. State, supra; Montalvo v. State, 520 So.2d 292 (Fla. 2nd DCA 1987); Broomhead v. State, 497 So.2d 734 (Fla. 2nd DCA 1986); Coleman v. State, 515 So.2d 313 (Fla. 2nd DCA 1987); Coleman v. State, 521 So.2d 265 (Fla. 2nd DCA 1988).

The sentence is therefore reversed and the cause is remanded to the trial court for resentencing within the guidelines range.

SMITH, C.J., and BOOTH, JJ., concur.