STATE OF FLORIDA, APPELLANT,
v.
VERL LAMAR DAVIS, APPELLEE
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The State appealed downward departure sentences imposed on Davis for drug trafficking offenses. The trial court suspended a 20-year sentence conditioned on community control and probation, citing consistency with a codefendant's sentence. The court held that while downward departures are permitted for habitual offenders with valid reasons, the specific sentencing structure used was illegal under Florida's five basic sentencing alternatives.
Although trial courts have discretion to impose downward departure sentences for habitual offenders when a valid written reason is provided, the specific sentence structure imposed here—suspending prison time conditioned on community control followed by probation—is not among the five basic sentencing alternatives recognized in Florida law and therefore constitutes an illegal sentence.
[1] A trial court may impose a sentence upon a habitual offender that is more lenient than the one provided by statute if the court determines that an enhanced sentence is no…
[2] Sentences that are not among the five basic sentencing alternatives outlined in Poore v. …
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a judge may impose 'a sentence upon a habitual offender more lenient than the one provided by the habitual offender statute' if the court decides 'that an enhanced sentence is not necessary to protect the public.'”
Establishes that downward departures for habitual offenders are permitted under Geohagen when proper discretion is exercised
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Join FLexlaw to unlock all legal intelligenceDavis pled no contest to trafficking in cocaine and delivery of cocaine. The trial court determined Davis qualified as an habitual offender and adjudi…
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THOMPSON, Judge.
The State of Florida appeals the downward departure sentences imposed by the trial court after Veri Lamar Davis pled no contest to trafficking in cocaine1 and delivery of cocaine.2 On appeal, the state contends that the downward departure sentences constitute illegal sentences. We agree and, therefore, vacate the sentences and remand for resentencing.
After Davis entered his pleas, the trial court determined that Davis qualified as an habitual offender, adjudicated Davis as such, and sentenced him to concurrent sentences of 20 years in the Department of Corrections as an habitual offender with credit for 20 days time served. The trial court, however, suspended the 20-year prison terms conditioned upon Davis’s successful completion of a period of two years of community control followed by 10 years of supervised probation. Recognizing that the sentences constituted downward departure sentences, the court provided a valid reason for the downward departure, both orally and in writing. Specifically, the court reasoned that the downward departure was appropriate to make Davis’s sentences consistent with his codefendant’s. See Sanders v. State, 510 So. 2d 296, 298 (Fla.1987).
In Geohagen v. State, 639 So. 2d 611, 612 (Fla.1994), the Supreme Court held that a judge may impose “a sentence upon a habitual offender more lenient than the one provided by the habitual offender statute” if the court decides “that an enhanced sentence is not necessary to protect the public.” Under Geohagen, the trial court in this case had the discretion to impose more lenient sentences than those provided by statute as long as the court gave a valid written reason for doing so. Inasmuch as the trial court here entered a valid written reason for its departure, we conclude that the court did not err in imposing downward departure sentences.
We agree, however, that the sentences imposed by the trial court constitute illegal sentences under the authority of Poore v. State, 531 So. 2d 161 (Fla.1988). In Poore, the Supreme Court outlined the five basic sentencing alternatives in Florida. Id. at 164. The sentences imposed by the trial court in this case are not among the alternatives listed in Poore. This court recently reversed as illegal a similar sentence which was imposed by the same trial judge in this case. See State v. Conte, 650 So. 2d 192 (Fla. 5th DCA 1995) (reversing 10-year sentence which trial court suspended conditioned upon defendant’s successful completion of two years community control, followed by five years probation), review denied, 659 So. 2d 270 (Fla.1995). Additionally, citing Conte, this court recently reversed the sentences of Davis’s codefendant. See State v. Farthing, 652 So. 2d 1290 (Fla. 5th DCA 1995). Accordingly, we vacate the sentences imposed by the trial court and remand with instructions that the trial court resentence Davis using one of the alternatives outlined in Poore.
Sentences VACATED; REMANDED for resentencing.
COBB and GOSHORN, JJ., concur. . §§ 893.135(l)(b)(l)(a), 893.03(2)(a)(4), Fla. Stat. (1993).
. §§ 893.13(l)(a)(l), 893.03(2)(a)(4), Fla.Stat. (1993).
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State v. Powell, 703 So. 2d 444 (Fla. 1997)…ph does not prohibit any other sanction provided by law. Id. (emphasis added). . We disapprove the following cases to the extent they are inconsistent with our opinion today: Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995); State v. Davis, 657 So. 2d 1224 (Fla. 5th DCA 1995); State v. Farthing, 652 So. 2d 1290 (Fla. 5th DCA 1995); State v. Conte, 650 So. 2d 192 (Fla. 5th DCA 1995); Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992). We note that the district court in Powell certified conflict with…
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State v. McEACHERN, 700 So. 2d 1 (Fla. 5th DCA 1997)…osed by the trial court does not conform to the sentence categories enunciated by the Florida Supreme Court in Poore v. State, 531 So. 2d 161 (Fla.1988). We have previously held this type of pure suspended sentence to be illegal. See State v. Davis, 657 So. 2d 1224 (Fla. 5th DCA 1995); State v. Conte, 650 So. 2d 192 (Fla. 5th DCA), review denied, 659 So. 2d 270 (Fla.1995); State v. Manning, 605 So. 2d 508 (Fla. 5th DCA 1992); Bryant v. State, 591 So. 2d 1102 (Fla. 5th DCA 1992); and Pinardi v. State, 617 So. 2…
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Dayna Maria Marchetta v. State, 766 So. 2d 1126 (Fla. 2d DCA 2000)…odefendant.” Sanders, 510 So. 2d at 298. See also Marsh v. State, 546 So. 2d 33 (Fla. 3d DCA 1989) (affirming downward departure sentence where trial court attempted to make sentence more equivalent to codefendant’s lesser sentence); State v. Davis, 657 So. 2d 1224 (Fla. 5th DCA 1995) (holding that desire to make defendant’s sentence consistent with codefendant’s was valid reason for downward departure), disapproved on other grounds, State v. Powell, 703 So. 2d 444 (Fla.1997). We reverse and remand for resen…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Sanders v. State, 510 So. 2d 296 (Fla. 1987)
- Geohagen v. State, 639 So. 2d 611 (Fla. 1994)
- State v. Conte, 650 So. 2d 192 (Fla. 5th DCA 1995)
- Tatum v. State, 652 So. 2d 1290 (Fla. 5th DCA 1995)