JAMES ARTHUR BRINSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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When a sentencing departure is based on both permissible and impermissible reasons, the case must be remanded for resentencing unless the state proves beyond a reasonable doubt that the impermissible reasons did not affect the departure.
The district court affirmed a trial court's sentencing departure despite finding two of seven reasons questionable. The appellate court had certified …
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PER CURIAM.
This is a petition to review Brinson v. State, 463 So. 2d 564, 564 (Fla. 2d DCA 1985), in which the district court certified the following as a question of great public importance:
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 resentencing?
We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. We recently answered the identical question in State v. Young, 476 So. 2d 161 (Fla.1985): “When a departure sentence is grounded on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the impermissible reason(s) would not have affected the departure sentence.” At 161. See also Albritton v. State, 476 So. 2d 158 (Fla.1985).
In the present case the district court affirmed the trial court despite finding two “questionable” reasons for departure among seven. We cannot determine the standard applied and therefore quash the decision and remand to the district court for reconsideration in light of Young.
It is so ordered.
BOYD, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur. ADKINS, J., concurs in result only.
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Citator
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Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985)…the sentence should be [*430] reversed and the case remanded for resen-tencing unless the state is able to show beyond a reasonable doubt that the absence of impermissible reasons would not have affected the departure sentence. See Brinson v. State, 476 So. 2d 162 (Fla.1985); Brooks v. State, 476 So. 2d 163 (Fla.1985); State v. Carney, 476 So. 2d 165 (Fla.1985); State v. Young, 476 So. 2d 161 (Fla.1985); Albritton v. State, 476 So. 2d 158 (Fla. 1985). In the present case, the trial court’s justification for d…
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Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)…case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.” Albritton v. State, 476 So. 2d 158, 160 (Fla.1985); Brinson v. State, 476 So. 2d 162 (Fla.1985). Because we are unable to determine beyond a reasonable doubt whether the trial court would have departed from the recommended guidelines sentence absent the invalid reasons, we reverse appellant’s sentence and remand for resentencing. W…
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von Carter v. State, 478 So. 2d 1071 (Fla. 1985)…should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the impermissible reason(s) would not have affected the departure sentence. At 161. See also Brinson v. State, 476 So. 2d 162 (Fla.1985); State v. Carney, 476 So. 2d 165 (Fla.1985); Albritton v. State, 476 So. 2d 158 (Fla.1985). Accordingly, we remand this cause to the district court for reconsideration. It is so ordered. BOYD, C.J., and ADKINS, McDONALD, EHRLICH and SHA…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985)
- Herndon W. Jones, Jr. v. Jones, 463 So. 2d 564 (Fla. 1st DCA 1985)