Whitehead v. State, No. AX-350
| Court | Florida District Court of Appeals |
| Writing for the Court | MILLS; ERVIN, C.J. and ZEHMER |
| Citation | 10 Fla. L. Weekly 973,467 So.2d 779 |
| Parties | 10 Fla. L. Weekly 973 Kenneth WHITEHEAD, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 15 April 1985 |
| Docket Number | No. AX-350 |
Page 779
v.
STATE of Florida, Appellee.
First District.
Rehearing Denied May 9, 1985.
Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
Page 780
Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
MILLS, Judge.
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, "Habitual offender. See the attached order as to Habitual offender." 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...
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Steiner v. State, Nos. 84-393
...points have been already assigned or deliberately not assigned. 7 See e.g., Weems v. State, 469 So.2d 128 (Fla.1985); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985) [10 FLW 973] (multiple crimes within five years not duplicative of habitual offender law which requires crimes within t......
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Hall v. State, No. BQ-408
...Payne v. State, 480 So.2d 202 (Fla. 1st DCA 1985) (on motion for rehearing), reversed, 498 So.2d 413 (Fla.1986); and Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985), reversed, 498 So.2d 863 (Fla.1986), but reversed and remanded for resentencing because the trial court had not reduced ......
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Morganti v. State, No. 87-0312
...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 bas......
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Nixon v. State, No. BC-196
...defendant perjured himself at trial. The first three reasons are valid. See Weems v. State, 469 So.2d 128 (Fla.1985); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985); Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984). The fourth reason, that defendant perjured himself, is an invalid r......
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Steiner v. State, Nos. 84-393
...points have been already assigned or deliberately not assigned. 7 See e.g., Weems v. State, 469 So.2d 128 (Fla.1985); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985) [10 FLW 973] (multiple crimes within five years not duplicative of habitual offender law which requires crimes within t......
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Hall v. State, No. BQ-408
...Payne v. State, 480 So.2d 202 (Fla. 1st DCA 1985) (on motion for rehearing), reversed, 498 So.2d 413 (Fla.1986); and Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985), reversed, 498 So.2d 863 (Fla.1986), but reversed and remanded for resentencing because the trial court had not reduced ......
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Morganti v. State, No. 87-0312
...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 bas......
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Nixon v. State, No. BC-196
...defendant perjured himself at trial. The first three reasons are valid. See Weems v. State, 469 So.2d 128 (Fla.1985); Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985); Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984). The fourth reason, that defendant perjured himself, is an invalid r......