Whitehead v. State, AX-350
| Decision Date | 15 April 1985 |
| Docket Number | No. AX-350,AX-350 |
| Citation | 10 Fla. L. Weekly 973,467 So.2d 779 |
| Parties | 10 Fla. L. Weekly 973 Kenneth WHITEHEAD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
Whitehead appeals from a sentence of 30 years in prison for aggravated battery. He contends the sentence should be vacated because the record does not show that in selecting sentencing pursuant to the sentencing guidelines he knowingly and intelligently waived his right to parole eligibility. Next, he contends the trial court failed to give clear and convincing reasons for departing from the recommended range. We affirm.
Whitehead's first contention is the same one first rejected by this Court in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), where we held an affirmative selection is all that is required. We reject this contention on authority of Moore, but, as in Gage v. State, 461 So.2d 202 (Fla. 1st DCA 1984), and Cochran v. State, 460 So.2d 542 (Fla. 1st DCA 1984), certify the following question to the Supreme Court as one of great public importance:
When a defendant who committed a crime before 1 October 1983 affirmatively selects sentencing pursuant to the sentencing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility?
We also reject Whitehead's second contention. In the space provided on the scoresheet for reasons for departure, the trial judge wrote, The order attached to the scoresheet contained the trial judge's finding that Whitehead is an habitual felony offender. The order also contained the finding, as required by Section 775.084(3), Florida Statutes (1983), that an extended term of imprisonment as an habitual offender is necessary for the protection of the public. The reasons for the latter finding were then set forth with individual particularity.
Whitehead argues that some of the reasons given in the order to show an extended term as an habitual offender is necessary for the protection of the public are impermissible reasons for departing from the guidelines. Thus, the argument goes, the departure was improper. The State argues that the order shows the trial judge relied on permissible reasons for departing from the guidelines. These arguments are based on the invalid assumption that the reasons given to show why an extended term as an habitual felony offender is necessary for the protection of the public are also the reasons given for departure from the guidelines.
The trial judge's written reason for departing from the guidelines was that Whitehead is an habitual offender. Although he attached the order which, in addition to finding Whitehead an habitual felony offender, also gave reasons why an extended term as an habitual felony offender is necessary for the protection of the public, those reasons were not reasons for departing from the guidelines. Whether those reasons are clear and convincing, as required by Florida Rule of Criminal Procedure 3.701(d)(11), is therefore irrelevant. The true issue is whether a finding that a defendant is an habitual felony offender is a clear and convincing reason for guideline departure.
To be an habitual felony offender, the recidivistic activity must occur within five years of a prior conviction or release from commitment. Section 775.084(1)(a)2, Florida Statutes (1983). In contrast, a prior adult record may be scored on the...
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