Taylor v. State

Full title: DWIGHT TAYLOR, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Apr 4, 1991

576 So. 2d 968 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-1509.

April 4, 1991.

Appeal from the Circuit Court, Marion County, Raymond T. NcNeal, J.

James B. Gibson, Public Defender, and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

We vacate the defendant's sentence as an habitual violent felony offender (section 775.084(4)(b)2., Florida Statutes) imposed on remand after our reversal in Taylor v. State, 558 So.2d 1092 (Fla. 5th DCA 1990) of the defendant's original sentence as an habitual felony offender (section 775.084(4)(a)2., Florida Statutes), because the sentence after remand constitutes punishment more harsh than the sentence reversed on the first appeal (the habitual violent felony offender includes a 10 year minimum mandatory sentence) and, is therefore prone to discourage appeals in violation of constitutional due process and the dictates of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

SENTENCE VACATED; CAUSE REMANDED FOR RESENTENCING.

COWART, GRIFFIN and DIAMANTIS, JJ., concur.