MICHAEL ANGELO AGATONE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reviewed a district court's affirmance of a departure sentence where the sentencing court relied on an impermissible reason (calling the defendant a devious person who committed perjury despite no perjury charge). The Court held that when a departure sentence 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 invalid reasons would not have affected the departure.
When a departure sentence is based on both permissible and impermissible reasons, the sentence must be reversed and the case remanded for resentencing unless the state proves beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.
[1] When a departure sentence is based on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state…
[2] A sentencing court's finding that a defendant committed perjury before the court is an impermissible reason for departure from sentencing guidelines when the defendant ha…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“when a departure sentence is based 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 invalid reasons would not have affected the departure sentence."”
The controlling legal standard for cases where sentencing courts rely on both valid and invalid reasons for departure from guidelines.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMichael Angelo Agatone received a departure sentence from the sentencing guidelines. The sentencing court justified the departure based on multiple re…
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EHRLICH, Justice.
We have for review Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985) in which the district court certified the following 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 3.071 IN REACHING 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?
Id. at 847. We have jurisdiction, article V, section 3(b)(4), Florida Constitution. We have answered this question previously in Griffin v. State, 479 So. 2d 739 (Fla.1985), State v. Young, 476 So. 2d 161 (Fla.1985), and Brinson v. State, 476 So. 2d 162 (Fla.1985) in which we held that when a departure sentence is based 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 invalid reasons would not have affected the departure sentence.” Albritton v. State, 476 So. 2d 158, 160 (Fla.1985).
In the case sub judice the district court affirmed the departure sentence despite finding that one of the reasons for departure, “that appellant was a devious person who committed perjury before the court,” was an invalid reason, especially given the fact that appellant was never charged with peijury.
Accordingly, we quash the decision and remand to the district court for further remand to the trial court for resentencing.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, MCDONALD, SHAW and BARKETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Rousseau, 509 So. 2d 281 (Fla. 1987)…ton. See, e.g., Keys v. State, 500 So. 2d 134 (Fla.1986); Casteel v. State, 498 So. 2d 1249 (Fla.1986); Sloan v. State, 491 So. 2d 276 (Fla.1986); Adams v. State, 490 So. 2d 53 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986); Agatone v. State, 487 So. 2d 1060 (Fla.1986).1 For example, in Scurry v. State, we cited Mischler for the proposition that the prohibited reasons set forth in Mischler could not be used to justify departure. Id. at 28. The question certified by the district court in Scurry, id. at 2…
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Daniels v. State, 492 So. 2d 449 (Fla. 1st DCA 1986)…ill obligate an appellate court to find a departure to be improper. But Mischler does not expressly recede from Albritton, and the supreme court has continued to recognize the validity of Albritton subsequent to Mischler. See e.g., Agatone v. State, 487 So. 2d 1060 (Fla.1986). As in the present case, in Agatone the court relied upon a personal belief as to the veracity of testimony presented to the court. We therefore conclude that Mischler, as clarified by the supreme court’s subsequent pronouncements, does n…
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Brawn v. State, 582 So. 2d 50 (Fla. 5th DCA 1991)…tence based only on a subjective belief that a defendant lied under oath. See Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985), review denied, 488 So. 2d 830 (Fla.1986); Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985), quashed on other grounds, 487 So. 2d 1060 (Fla.1986); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985). See also City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla.1985); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). Lastly, the trial court emphasized the possible em…
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)
- Brinson v. State, 476 So. 2d 162 (Fla. 1985)
- Serge v. Dreher, 474 So. 2d 846 (Fla. 4th DCA 1985)
- Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985)
- Griffin v. State, 479 So. 2d 739 (Fla. 1985)