JAMES ARTHUR BRINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's sentence departing from guidelines was affirmed despite two questionable reasons, because five valid reasons supported the departure; the court certified a question to the Florida Supreme Court regarding appellate review of sentencing departures based on impermissible reasons.
When a sentencing court departs from guidelines based on multiple reasons, some impermissible, the appellate court may affirm if sufficient valid reasons support the departure without remanding for resentencing.
[1] When a sentencing court departs from guidelines based on multiple reasons, an appellate court may affirm if sufficient valid reasons support the departure, even if some s…
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Join FLexlaw to unlock all legal intelligenceBrinson was sentenced to a term departing from his guidelines score sheet. The trial judge provided seven written reasons for the departure.…
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DANAHY, Acting Chief Judge.
This defendant challenges sentences representing a departure from the recommended sentence indicated by his guidelines score sheet. The trial judge gave seven written reasons for the departure, five of which appear to us to be valid and proper, and two of which seem to us to be questionable. On balance, it would appear that the trial judge should be affirmed based on the five valid reasons rather than reversed with directions to reconsider the sentence. We have declined to reverse when only one of several reasons was found improper. Willard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985). In this case, however, we affirm but certify the same question that our sister court certified in Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984):
WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY A DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENC-ING?
AFFIRMED.
FRANK, J., and BOARDMAN, EDWARD F. (Ret.), J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)…r impermissible reasons, we believe it appropriate to remand the case for resentencing. Compare Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984) (one out of five reasons for departure proper; case remanded for resentencing), with Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985) (five out of seven reasons for departure proper; sentence affirmed); Marshall v. State, 468 So. 2d 255 (Fla. 2d DCA 1985) (one out of three reasons for departure proper; sentence reversed on other grounds). As did the courts in Br…1 / 2
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Steiner v. State, 469 So. 2d 179 (Fla. 3d DCA 1985)…ust point in the same paragraph, let alone with the entire group of reasons stated in the order as a whole, that it is clear that the trial court would have entered the same sentence if the improper grounds had not been considered. Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985) (five out of seven reasons for departure proper; sentence affirmed); compare Baker v. State, supra (only one of five reasons proper, cause remanded for resentencing), and cases cited at 466 So. 2d at 1146.…
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Hall v. State, 503 So. 2d 1370 (Fla. 4th DCA 1987)…ed to aggravate defendant’s sentence was the finding that he knowingly created a risk of death to many people. The court concluded that this may constitute a clear and convincing ground to deviate if supported by the record. Accord Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA) quashed on other grounds, 476 So. 2d 162 (Fla.1985). In Staten v. State, 500 So. 2d 297 (Fla. 2d DCA 1986), the defendant was convicted for a shooting incident to a robbery. The court concluded that although the violence used was not…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)
- Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985)