Kelly v. State

Dec 29, 1993
No. 92-01369
Versions:629 So. 2d 325
1993 WL 541576
1993 Fla. App. LEXIS 12900
DANAHY, Acting Chief Judge.

The appellant seeks a new trial on charges of robbery with a deadly weapon and aggravated assault, and reversal of his habitual violent felony offender sentence for robbery with a deadly weapon. We affirm the appellant’s convictions but reverse the habitual violent felony offender sentence.

The record shows that the trial court felt it had no option as to sentencing under the habitual offender statute and was required to impose a life sentence based on this court’s decision in Walsingham v. State, 590 So.2d 1112 (Fla. 2d DCA 1991). Following its decision in Burdick v. State, 594 So.2d 267 (Fla.1992), the supreme court reversed our Walsingham decision. Walsingham v. State, 602 So.2d 1297 (Fla.1992). Accordingly, reversal of the habitual offender sentence in this ease is required so that the trial court may determine a sentence with knowledge that it has discretion to decline to impose a life sentence.

We reverse with directions that the trial court reconsider the appellant’s habitual violent felony offender sentence in light of the supreme court’s determination that sentencing under the habitual offender statute is discretionary.

Affirmed in part and reversed in part.

HALL and PATTERSON, JJ., concur.