Holt v. StateHolt v. State
This appeal is from a judgment and sentence for assisting in a riot and hurling deadly missiles at buildings. At the time the offenses were committed, appellant was an inmate at Cross City Correctionаl Institution. On appeal he raises the following three points: I. Whether the trial court erred in denying the defense motion for discharge; II. Whether the trial court erred in denying the defense motion fоr judgment of acquittal; and III. Whether the trial court erred in sentencing under the guidelines and in departing therefrom. We find no error under Points I and II, and affirm. Specifically, as to Point I, we affirm on the basis оf Height v. State, 459 So.2d 470 (Fla. 1st DCA 1984). However, we do find error under Point III, and therefore vacate the sentence and remand for resentencing.
We initially disagree with appellant‘s position that the trial court imprоperly applied
Nevertheless, we do agree thаt sentencing errors did occur below. Fundamental to sentencing under the guidelines where, as here, the offense was committed prior to their October 1, 1983 effective date, is the defendаnt‘s affirmative selection to be so sentenced. Here, thе record does not indicate such an affirmative seleсtion on appellant‘s part. That, in itself, is reversible error. Patterson v. State, 462 So.2d 33 (Fla. 1st DCA 1984); Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984). Thе error was compounded, however, by the trial court‘s failurе to put in writing its reasons for departing from the guidelines. Again, that omission constitutes reversible error. Oden v. State, 463 So.2d 313 (Fla. 1st DCA 1985); Gage v. State, 461 So.2d 202 (Fla. 1st DCA 1984); Millett v. State, 460 So.2d 489 (Fla. 1st DCA 1984); Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984).
Since the cause will be remаnded to the trial court for resentencing, we caution the сourt, in the event it again sentences appellant as а habitual felony offender, to pay careful heed to the statutory scheme of
Next, should appellant affirmatively select sentencing under the guidelines, we point out that the court‘s finding, supported by the record, that appellant is a habitual felony offender constitutes a clear аnd convincing reason for departure. Whitehead v. State. Nevertheless, if the sеntence exceeds the guidelines’ recommended range for that reason, the court must still comply with
Bаsed on the foregoing, the sentence is VACATED and the cause is REMANDED fоr resentencing. If appellant should select sentencing under the guidelines, he is entitled to be sentenced under the rules in effect at the time of the imposition of this sentence now being reviewed. Saunders v. State, 459 So.2d 1119 (Fla. 1st DCA 1984).
BOOTH, C.J., and BARFIELD, J., concur.