Public-domain · open source
OpenJurist

520 So. 2d 310

520 So.2d 310

13 Fla.L.Weekly 536

King v. State

District Court of Appeal of Florida

Decided February 24, 1988

District Court of Appeal of Florida · decided 1988-02-24

Cited by 2 later decisions — most recently September 1988

2 state decisions

Relies on 515 So. 2d 748 - Shull v. Dugger · 494 So. 2d 291 - King v. State · 502 So. 2d 1243 - King v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1988-02-24

View the full empirical analysis of this case →

HALL, Judge.

¶1David E. King appeals from his judgment and sentence for armed robbery. He argues that the trial court erred in exceeding the presumptive guidelines sentence without clear and convincing reasons. We reverse and remand for resentencing within the guidelines.

¶2The appellant was tried by jury and found guilty of three counts of armed robbery. Thereafter, at the sentencing hearing the trial court found the appellant to be a habitual offender and departed from the presumptive guidelines sentence solely on that basis.

¶3The appellant appealed from that departure sentence and this court affirmed the trial court’s decision to depart but certified as a question of great public importance whether the appellant’s departure sentence could be justified by his habitual offender status. King v. State, 494 So.2d 291 (Fla. 2d DCA 1986). The supreme court answered that question in the negative stating: “section 775.084 cannot operate as an alternative to guidelines sentencing ... nor can the habitual offender statute remain viable as a reason for departure_” The supreme court remanded with directions that the case be returned to the trial court for resentencing in accordance with its opinion. King v. State, 502 So.2d 1243 (Fla.1987).

¶4Upon resentencing, the trial court again departed from the sentencing guidelines and gave four new reasons for departure.

¶5*311The appellant argues that the trial court’s reasons for departure at resentenc-ing are invalid. We need not address that argument in view of Shull v. Dugger, 515 So.2d 748 (Fla.1987).

¶6In Shullthe supreme court held that when all the reasons stated by the trial court to justify departure are found to be invalid on appeal, the trial court may not enunciate entirely new reasons for departure at resentencing, but upon remand must sentence the defendant within the presumptive guidelines range. The court declined to carve out an exception for cases in which the reasons given for departure were valid at the time of the original sentencing according to appellate decisions but were later invalidated by the supreme court.

¶7We therefore reverse the appellant’s sentence and remand for sentencing within the presumptive guidelines range.

¶8Reversed and remanded.

SCHOONOVER, A.C.J., and FRANK, J., concur.
/520/so2d/310 · .json · Public domain