GWENDA JEAN LEMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's sentence imposed under 1995 guidelines must be reconsidered on remand to determine whether the trial court would have imposed the same departure sentence under the 1994 guidelines.
A defendant sentenced under newer guidelines is entitled to resentencing consideration under prior guidelines unless the trial court would have imposed an identical departure sentence under both versions.
[1] A defendant sentenced under updated sentencing guidelines may be entitled to resentencing under prior guidelines where the trial court's departure sentence could not have…
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Join FLexlaw to unlock all legal intelligenceLemon received a ninety-six month upward departure sentence in one case calculated under 1995 guidelines, which matched the 1994-guidelines sentence i…
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PER CURIAM.
Appellant appeals the trial court’s order denying her motion to correct sentence alleging her right to be resentenced under the 1994 guidelines in her two underlying cases. Although the 1995 guidelines were used to calculate the scoresheet in one of those cases, she was given an upward departure sentence of ninety-six months, which corresponds to the 1994-guidelines sentence of ninety-six months imposed in the second case.
We reject the state’s argument that because the departure sentence could have been imposed even if the 1994 guidelines had been used, appellant is not entitled to relief. Although this reasoning has been applied to habitual offender sentences, see e.g., Arce v. State, 762 So. 2d 1003 (Fla. 4th DCA 2000), those sentences do not arise from the guidelines, while departure sentences do.
Nonetheless, relief may not be due where it can be shown that the trial court would have imposed the same 1995 guidelines departure sentence under the 1994 guidelines. Cf. Hines v. State, 587 So. 2d 620, 621 (Fla. 2d DCA 1991), approved sub nom., State v. Mackey, 719 So. 2d 284 (Fla.1998); Rubin v. State, 734 So. 2d 1089, 1089 (Fla. 3d DCA 1999). We therefore reverse and remand for consideration of this point.
We affirm the remainder of the trial court’s order. STONE, SHAHOOD and GROSS, JJ., concur.
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State v. Gwenda Jean Lemon, 825 So. 2d 927 (Fla. 2002)…PER CURIAM. We have for review the decision in Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000), which expressly and directly conflicts with the decisions in Ray v. State, 772 So. 2d 18 (Fla. 2d DCA 2000), review denied, 791 So. 2d 1100 (Fla.2001), and Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000). We have jurisdiction.…
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Davis v. State, 791 So. 2d 1137 (Fla. 4th DCA 2001)…PER CURIAM. We reverse and remand for a determination of whether it can be shown that the trial court would have imposed the same 1995 guidelines departure sentence under the 1994 guidelines. See Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000). If such showing cannot be made, then resen-tencing is required under Heggs v. State, 759 So. 2d 620 (Fla.2000). STEVENSON, GROSS and TAYLOR, JJ., concur. ON MOTION FOR CERTIFICATION OF CONFLICT PER CURIAM. We grant appellee’…1 / 2
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Ross v. State, 804 So. 2d 359 (Fla. 4th DCA 2001)…tion of his sentence under the 1994 scoresheet. However, if it can be shown that the trial court would have imposed the same guidelines departure under the 1994 scoresheet, then appellant may not be entitled to sentencing relief. See Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000). We affirm the trial court’s summary denial of appellant’s challenges in grounds two, three and four of the motion. Appellant’s consecutive sentences for two separate crimes were legal under section 775.021(4), Florida Statutes…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Arce v. State, 762 So. 2d 1003 (Fla. 4th DCA 2000)
- State v. MacKey, 719 So. 2d 284 (Fla. 1998)
- Hines v. State, 587 So. 2d 620 (Fla. 2d DCA 1991)
- Rubin v. State, 734 So. 2d 1089 (Fla. 3d DCA 1999)