PHILLIP LEE MOULTRIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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COWART, Judge.
This is another sentencing guideline case. The departure sentence in this case was based on the adjudication of the defendant as an habitual felony offender under section 775.084, Florida Statutes. While the adjudication of habitual felony offender status was sufficient under that statute, it was not based on reasons which, independent of the defendant’s criminal record, justified a departure sentence. Therefore the departure sentence is, indirectly and in substance, inconsistent with Hendrix v. State, 475 So. 2d 1218 (Fla. 1985), which disapproves a departure sentence based on the defendant’s criminal record which has been factored into the recommended guideline sentence. See Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986). In addition, the mere reference to “habitual offender” on the guideline scoresheet does not comply with State v. Jackson, 478 So. 2d 1054 (Fla.1985), which requires a written statement of reasons for departure.
CONVICTION AFFIRMED; SENTENCE VACATED, CAUSE REMANDED FOR RESENTENCING.
ORFINGER, J., and SCHWARTZ, A., Associate Judge, concur.
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Cited By
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Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986)…ion which have already been factored into the recommended guideline sentence. Since there is no additional clear and convincing reason this departure sentence was inconsistent with Hendrix v. State, 475 So. 2d 1218 (Fla.1985). See Moultrie v. State, 488 So. 2d 558 (Fla. 5th DCA 1986); Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986). In addition a notation on the guidelines scoresheet that the defendant was “sentenced as an habitual offender with necessary findings of fact by the court” does not [*785] c…
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Middleton v. State, 489 So. 2d 201 (Fla. 2d DCA 1986)…s holding, as has been pointed out in this case, that the habitual offender status of a defendant may provide a proper basis for departure. E.g., Hale; Johnson. See also Gonzalez v. State, 487 So. 2d 91 (Fla. 3d DCA 1986). But see Moultrie v. State, 488 So. 2d 558 (Fla. 5th DCA 1986). That is, if a departure grounded upon the conclusion, derived from a defendant’s prior record, that he is an habitual offender is a proper ground for departure, i.e., is not based upon “factors already taken into account in calc…
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State v. Moultrie, 503 So. 2d 892 (Fla. 1987)…EHRLICH, Justice. We have for review Moultrie v. State, 488 So. 2d 558 (Fla. 5th DCA 1986), which expressly and directly conflicts with decisions of other district courts of appeal on the issue of whether habitual offender status, under section 775.084, Florida Statutes (1985), is a valid reason for departure from a pr…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986)