JAMES ARTHUR BRINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court, the Second District Court of Appeal reconsidered whether a departure sentence was properly supported by permissible reasons under the rule established in State v. Young. The court affirmed the sentence, finding that the state demonstrated beyond a reasonable doubt that two impermissible sentencing reasons did not affect the trial judge's decision to depart from guidelines.
A departure sentence relying on both permissible and impermissible reasons should be reversed and remanded for resentencing unless the state can show beyond a reasonable doubt that the absence of the impermissible reasons would not have affected the departure sentence. On remand, the court affirmed because the state met this burden and the extent of departure was not an abuse of discretion.
[1] When a departure sentence is based on both permissible and impermissible reasons, the sentence must be reversed and remanded for resentencing unless the state can demonst…
[2] A trial judge's reasons for departing from sentencing guidelines must be legally sufficient to justify the departure.
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Join FLexlaw to unlock all legal intelligence“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 reasons would not have affected the departure sentence”
Establishes the rule from State v. Young that governs appellate review of mixed permissible and impermissible sentencing reasons
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Join FLexlaw to unlock all legal intelligenceBrinson was charged with nine counts of armed robbery and one count of attempted armed robbery occurring within less than one month. He entered pleas …
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DANAHY, Acting Chief Judge.
This case is before us on remand from the Florida Supreme Court which, in Brinson v. State, 476 So. 2d 162 (Fla.1985), reversed our decision in Brinson v. State, 463 So. 2d 564 (Fla. 2d DCA 1985).
The defendant in this ease was charged by information with nine counts of armed robbery and one count of attempted armed robbery, all occurring within a space of less than one month. He entered pleas of nolo contendere and was adjudicated guilty. A guidelines scoresheet indicated a recommended range of five and one-half to seven years. The trial judge sentenced the defendant to concurrent terms of fifteen years on each count. He gave the following written reasons for departure:
1. The defendant provided the firearm used by his co-defendant.
2. He received an equal share of the proceeds and an unusually large sum of money.
3. He was persistent in his participation reflecting that he is a dangerous criminal.
4. Victims were placed in great fear. 5. The defendant is an alcoholic and drug addict who supplied his habits from the robbery proceeds.
6. The lives of many people were placed in jeopardy.
7. Several victims will undoubtedly have psychological problems arising out of these experiences.
In our prior opinion, we stated that five of the above reasons appeared to us to be valid and proper, and two seemed to us to be questionable. The two questionable reasons were the second and fourth stated by the trial judge. Because there were five valid reasons out of the seven, we affirmed but certified a question reflecting our uncertainty as to the proper disposition on appeal when an appellate court finds that a sentencing court relied upon a reason or reasons that are impermissible and another or others that are permissible. The question certified was the same question that was certified in Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984).
Subsequent to our prior opinion in this case, the supreme court answered the certified question in State v. Young, 476 So. 2d 161 (Fla.1985). The rule as stated by the supreme court is that 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 reasons would not have affected the departure sentence. The mandate of the supreme court in this case directs us to reconsider in light of the rule expressed in Young.
On remand, we have again examined the record and the briefs submitted in this cause. In our opinion, the state has shown beyond a reasonable doubt that the absence of the second and fourth reasons given by the trial judge would not have affected the departure sentence. Further, we do not view the extent of the departure sentence to be an abuse of discretion on the part of the trial judge. Albritton v. State, 476 So. 2d 158 (Fla.1985).
Accordingly, we affirm the judgments and sentences entered in this case.
FRANK and HALL, JJ., concur.
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Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)…e, nor do we see that what the state says the trial court meant would be an appropriate reason for departure. The state says that masterminding the crime has been held to be a clear and convincing reason for a departure sentence in Brinson v. State, 478 So. 2d 1174 (Fla. 2d DCA 1985), but we do not think that is what was said in Brinson, nor what the trial court here was saying; and that running a well-organized criminal enterprise is a proper reason for departure, Garcia v. State, 454 So. 2d 714 (Fla. 1st DCA…
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Moreira v. State, 500 So. 2d 343 (Fla. 3d DCA 1987)…this kidnap for ransom. Garcia v. State, 455 [454] So. 2d 714 (Fla 1st DCA 1984); Johnson v. State, 462 So. 2d 49 (Fla. 1st DCA 1984); Scurry v. State, 489 So. 2d 25 (Fla.1986); Davis v. State, 476 So. 2d 303 (Fla. 1st DCA 1985); Brinson v. State, [478 So. 2d 1174] (Fla. 2 DCA [1985]). 2. The commission of offense created severe psychological trauma to members of the victim’s family. The testimony established that the defendant tied up and abducted the victim in the victim’s own residence in the presence of…
Authorities 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)
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)
- Brinson v. State, 476 So. 2d 162 (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)