Opinion

Smith v. State

  • 11 Fla. L. Weekly 1041
  • 488 So. 2d 593
  • 1986 Fla. App. LEXIS 7618
Court
District Court of Appeal of Florida
Filed
May 2, 1986
Status
Published
Author
Sanderlin
On the bench
Frank, Ryder, Sanderlin
Cited by
1 cases
Authority
More cited than 69.6%

The opinion

SANDERLIN, Judge.

Appellant was convicted by a jury of throwing a deadly missile into an occupied vehicle and simple assault. On appeal, he raises four points, only one of which has merit.

At the sentencing hearing, the trial court found appellant to be a habitual offender and orally set forth the reasons for which finding as required by section 775.084(3)(d), Florida Statutes (1983). See Eutsey v. State, 383 So.2d 219 (Fla.1980). The trial court sentenced appellant to twenty-three years’ imprisonment upon conviction for throwing a deadly missile into an occupied vehicle. This sentence represented a departure from the guidelines’ recommended sentence of nine to twelve years. No written reasons for departure appear in the record.

Although this court has held that sentencing as a habitual offender is a clear and convincing reason for departing from the guidelines, Ferguson v. State, 481 So.2d 924 (Fla. 2d DGA 1986); McCuiston v. State, 462 So.2d 830 (Fla. 2d DCA 1985), the trial court is nevertheless required to set forth in writing this reason for departure. State v. Jackson, 478 So.2d 1054 (Fla.1985).

Accordingly, appellant’s convictions are affirmed, but appellant’s sentence for throwing a deadly missile into a occupied vehicle is reversed and the case remanded for resentencing. For guidance, the trial court is directed to Johnson v. State, 486 So.2d 53 , 54 n. 1 (Fla. 2d DCA 1986).

RYDER, C.J., and FRANK, J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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