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Holmes v. State

Holmes v. State, 502 So. 2d 1302 (Fla. Dist. Ct. App. 1987)
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Court
District Court of Appeal of Florida · State Appellate Courts
Decided
February 23, 1987
Docket
No. BM-177
Judges
Barfield
Citations
502 So. 2d 130212 Fla. L. Weekly 597
Cited by 8 1 descriptions by later courts

Opinion

502 So.2d 1302 (1987)

Horace Lee HOLMES, Appellant,

v.

STATE of Florida, Appellee.

No. BM-177.

District Court of Appeal of Florida, First District.

February 23, 1987.

*1303 Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Appellant contends the trial court erred in two respects. First, it erred in determining him to be an habitual offender. Second, it erred in basing a departure sentence on the habitual offender findings.

Departure based on the habitual offender findings is invalid. Whitehead v. State, 498 So.2d 863 (Fla. 1986).

The first issue requires further consideration as it would permit the trial court to sentence up to 5 1/2 years within the guidelines on a third degree felony otherwise statutorially limited to 5 years. The trial court failed to make essential findings as required by section 775.084(3), Florida Statutes (1985), that an extended term of imprisonment was "necessary for the protection of the public." The case must be remanded for the trial court to make the required findings, if it can. The trial court may still make a determination that an enhanced sentence under the habitual offender statute is needed. Once it does so, the trial court may then consider whether to sentence up to the guidelines limit or, upon clear and convincing reasons, impose a departure sentence up to the new cap of 10 years. Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1986); Winters v. State, 500 So.2d 303 (Fla. 1st DCA 1986).

The case is REVERSED and REMANDED for further sentencing proceedings.

SMITH and JOANOS, JJ., concur.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

Cited by 8 cases

View all citing references →
1987: 61988: 11990: 119872026peak 1987 · 6

Relies on it most ⓘ

  1. Hall v. State511 So. 2d 1038 (Fla. Dist. Ct. App. 1987)
  2. Hester v. State503 So. 2d 1342 (Fla. Dist. Ct. App. 1987)
  3. McMillan v. State516 So. 2d 1064 (Fla. Dist. Ct. App. 1987)
  4. Inscho v. State521 So. 2d 164 (Fla. Dist. Ct. App. 1988)
  5. Johnson v. State503 So. 2d 959 (Fla. Dist. Ct. App. 1987)
  6. Miller v. State524 So. 2d 1031 (Fla. Dist. Ct. App. 1987)

Most recent

  1. Carnegie v. State564 So. 2d 233 (Fla. Dist. Ct. App. 1990)
  2. Inscho v. State521 So. 2d 164 (Fla. Dist. Ct. App. 1988)
  3. Jones v. State517 So. 2d 121 (Fla. Dist. Ct. App. 1987)
  4. Miller v. State524 So. 2d 1031 (Fla. Dist. Ct. App. 1987)
  5. McMillan v. State516 So. 2d 1064 (Fla. Dist. Ct. App. 1987)
  6. Hall v. State511 So. 2d 1038 (Fla. Dist. Ct. App. 1987)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Whitehead v. State, 498 So. 2d 863 (Fla. 1986) 266
Myers v. State, 499 So. 2d 895 (Fla. Dist. Ct. App. 1986) 25
Winters v. State, 500 So. 2d 303 (Fla. Dist. Ct. App. 1986) 21

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