STATE OF FLORIDA, PETITIONER,
v.
TIMOTHY LEE CARNEY, RESPONDENT
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When a departure sentence is based on both permissible and impermissible reasons, it should be reversed and remanded for resentencing unless the state proves beyond a reasonable doubt that the impermissible reasons did not affect the departure.
The district court reviewed a departure sentence based on both permissible and impermissible reasons. Applying harmless error analysis, the court coul…
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SHAW, Justice.
This cause is before us based on a certified question of great public importance. Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The district court below addressed the question of appellate review of departures from sentencing guidelines where a trial court relies on both permissible and impermissible reasons for the departure. Applying a harmless error analysis, the court concluded that it was unable to determine whether elimination of the impermissible reasons would have affected the departure sentence. Accordingly, the court reversed the sentence, remanded for resentencing, and certified as a question of great public importance the same question certified in Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984).
We addressed the broad question of appellate review of departures from sentencing guidelines in Albritton v. State, 476 So. 2d 158 (Fla.1985), and answered the certified question in State v. Young, 476 So. 2d 161 (Fla.1985). Although the district court did not have the benefit of these decisions, its reasoning and conclusion largely parallel our own: “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.” Young, 476 So. 2d 161, 162, (Fla.1985). We approve the decision below.
It is so ordered.
BOYD, C.J., and OVERTON, ALDERMAN, McDonald and EHRLICH, JJ., concur. ADKINS, J., concurs in result only.
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Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)…Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980); Wilcott v. State, 509 So. 2d 261 (Fla. 1987) (Shaw, J., dissenting); State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986) (Shaw, J., dissenting); State v. Enmund, 476 So. 2d 165, 168 (Fla.1985) (Shaw, J., concurring specially); Bradley v. State 79 Fla. 651, 84 So. 677 (1920). My next reason for disagreement has to do with how I view the evidence as opposed to the majority view. The record shows that appellant Carawan laid…
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Freeman v. State, 761 So. 2d 1055 (Fla. 2000)…er is inferred from the underlying felony. As a matter of law, a statement that Freeman did not intend to kill Collier was legally insufficient to negate a felony murder conviction. See State v. Gray, 654 So. 2d 552, 553 (Fla.1995); State v. Enmund, 476 So. 2d 165, 168-69 (Fla.1985)(Shaw, J., specially concurring, explaining the felony murder rule). The jury chose not to convict Freeman of premeditated first-degree murder even though they were instructed that they could choose premeditated first-degree murder…
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State v. Smith, 547 So. 2d 613 (Fla. 1989)…ct to cumulative sentences in a single trial, the dispositive question is whether the legislature intended separate convictions and sentences for the two crimes. State v. Gibson, 452 So. 2d 553, 558 (Fla.1984), receded from in part, State v. Enmund, 476 So. 2d 165 (Fla.1985); Borges v. State, 415 So. 2d 1265, 1267 (Fla.1982). As the Supreme Court succinctly put it, “[wjith respect to cumulative sentences in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescrib…1 / 2
Previewing 3 of 108 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)
- Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)