Opinion
No. 93-02045.
May 6, 1994.
Appeal from the Circuit Court for Hillsborough County, Donald C. Evans, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Christopher M. Sierra, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellee.
The state challenges Tillman's sentences as a habitual felony offender in seven cases. Two of the cases involved original sentences; the remaining cases involved sentences imposed upon revocation of probation. The state contends the sentences are illegal because they constitute a downward departure from the guidelines and they are not supported by written reasons. We agree and reverse.
This court has set forth the following procedure for sentencing a defendant as a habitual offender to probation or community control:
In order to properly sentence a defendant found to be an habitual felony offender to probation or community control, the trial judge would first have to make a decision under subsection 775.084(4)(c) that a sentence as an habitual felony offender was not necessary. Having made that decision, a sentence pursuant to sentencing guidelines would then be required. If the guidelines recommended sentence called for a sentence other than probation or community control, in order to impose such a sentence, the trial judge would be required to enter an order finding proper reasons for a downward departure. Only then could the state appeal such a sentence based upon an improper departure.King v. State, 597 So.2d 309, 317 (Fla. 2d DCA) (en banc), review denied, 602 So.2d 942 (Fla. 1992) (emphasis in original).
The supreme court adopted the rationale of King in McKnight v. State, 616 So.2d 31 (Fla. 1993).
Tillman was designated a habitual offender in the seven cases, and he was placed on a total of two years of community control followed by eight years of drug offender probation. However, Tillman's scoresheet indicated a permitted sentencing range of twelve to twenty-seven years, and the trial court did not supply written reasons in support of its departure from this range.
Accordingly, we must reverse Tillman's sentences in case nos. 87-2697, 87-2800, 87-3162, 87-3163, 89-4970, 89-4971, 92-12208, and 92-12259 and remand all but case no. 87-2697 for resentencing within the guidelines. Pope v. State, 561 So.2d 554 (Fla. 1990). Tillman shall not be resentenced in case no. 87-2697 because, as he argues on cross-appeal, he has served the statutory maximum in that case.
We do not reach Tillman's other issue on cross-appeal as it has been rendered moot by our disposition of the direct appeal.
Reversed and remanded with directions.
FRANK, C.J., and PARKER and LAZZARA, JJ., concur.