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629 So. 2d 325

Kelly v. State

District Court of Appeal of Florida

Decided December 29, 1993

District Court of Appeal of Florida · decided 1993-12-29

Cited by 1 later decisions — most recently February 1999

1 state decisions

Relies on Burdick v. State · Walsingham v. State · 590 So. 2d 1112 - Walsingham v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1993-12-29

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DANAHY, Acting Chief Judge.

¶1The appellant seeks a new trial on charges of robbery with a deadly weapon and aggravated assault, and reversal of his habitual violent felony offender sentence for robbery with a deadly weapon. We affirm the appellant’s convictions but reverse the habitual violent felony offender sentence.

¶2The record shows that the trial court felt it had no option as to sentencing under the habitual offender statute and was required to impose a life sentence based on this court’s decision in Walsingham v. State, 590 So.2d 1112 (Fla. 2d DCA 1991). Following its decision in Burdick v. State, 594 So.2d 267 (Fla.1992), the supreme court reversed our Walsinghamdecision. Walsingham v. State, 602 So.2d 1297 (Fla.1992). Accordingly, reversal of the habitual offender sentence in this ease is required so that the trial court may determine a sentence with knowledge that it has discretion to decline to impose a life sentence.

¶3We reverse with directions that the trial court reconsider the appellant’s habitual violent felony offender sentence in light of the supreme court’s determination that sentencing under the habitual offender statute is discretionary.

¶4Affirmed in part and reversed in part.

HALL and PATTERSON, JJ., concur.
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