Summary
In Maulden v. State, 514 So.2d 370 (Fla. 4th DCA 1987), the appellant successfully argued that the trial judge erred in departing from the recommended guideline sentence, and the matter was remanded for resentencing. This court found only "the first, the emotional and psychological trauma to the victim" (emphasis added), of the stated reasons for departure was valid, which appeared with four (4) other stated reasons in the Order for Aggravation of Guideline Sentence.
Summary of this case from Maulden v. StateOpinion
No. 4-86-1783.
August 5, 1987. On Motion for Rehearing October 14, 1987.
Appeal from the Circuit Court for Broward County; Mark A. Speiser, Judge.
Richard L. Jorandby, Public Defender, and Thomas F. Ball III, Asst. Public Defender, West Palm Beach, and Douglas Greene, Member of New Jersey Bar, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Amy L. Diem, Asst. Atty. Gen., West Palm Beach, for appellee.
AFFIRMED.
GLICKSTEIN and GUNTHER, JJ., and LUZZO, JOHN T., Associate Judge, concur.
ON MOTION FOR REHEARING
Appellant's motion for rehearing is granted. This cause is affirmed in all respects except sentencing. None of the trial court's reasons for departure from the recommended sentencing guidelines range are valid except the first, the emotional and psychological trauma to the victim. Additionally, the recent Florida Supreme Court case of Griffis v. State, 509 So.2d 1104 (Fla. 1987), provides that a statement by the trial court that it would depart for any of the reasons given, standing alone, is not enough to satisfy the burden of proving beyond a reasonable doubt that the sentence would have been the same without the impermissible reasons. See Albritton v. State, 476 So.2d 158 (Fla. 1985). Furthermore, the habitual offender statute, section 775.084, Florida Statutes (1985), cannot be used to extend the statutory maximum where the sentencing guidelines were impermissibly exceeded. Hester v. State, 503 So.2d 1342 (Fla. 1st DCA 1987); Whitehead v. State, 498 So.2d 863, 865 (Fla. 1987). Therefore, in this case, we hold that the State has not met its burden as established in Albritton and Whitehead, and we reverse and remand for resentencing.
AFFIRMED IN PART, REVERSED IN PART.