James Arthur Walker v. State Florida

Walker appeals, complaining that his resentencing upon remand, Walker v. State, 473 So.2d 694 (Fla. 1st DCA 1985), violated North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). We will not address this point because we find a substantial change in the law which compels us to hold that Walker is entitled to be resentenced. Appellant was convicted by a jury of attempted second degree murder while in possession of a firearm and two counts of aggravated assault while in possession of a firearm. He elected to be sentenced under the guidelines which recommended a sentence of seventeen to twenty-two years. However, citing the fact that appellant was a habitual offender, the trial court deviated from the guidelines, sentencing appellant to sixty years on the first count (attempted second degree murder while in possession of a firearm) and ten years on each of the other counts, with all sentences to run concurrently. On appeal, this court affirmed appellant's conviction but found his sixty-ear sentence to be illegal and unauthorized under the statutes. Since appellant was a habitual felon convicted of a felony of the first degree, this court found he should have been sentenced to life on count 1 rather than a term of years. Because all involved were operating under the erroneous impression that the maximum sentence appellant could receive on count 1 was sixty years and it was highly questionable whether appellant would have elected to be sentenced under the guidelines had he known he faced a mandatory life sentence with no possibility of parole, this court reversed and remanded for resentencing, permitting appellant to withdraw his election to be sentenced under the guidelines if he so desired. See, opinion on remand, 473 So.2d 694.