JESSIE DANIELS, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jessie Daniels III appeals his convictions for sexual battery, false imprisonment, and aggravated assault with a deadly weapon, challenging the trial court's departure from sentencing guidelines. The appellate court affirms, holding that although the court relied on an improper basis (the judge's belief that the defendant gave untruthful testimony), the error was harmless because other permissible reasons supported the sentence.
The appellate court held that while relying on a judge's personal belief about a defendant's truthfulness is an improper basis for sentencing departure, such error is harmless when other permissible reasons support the sentence. Resentencing is not required under these circumstances.
[1] A sentencing court's personal belief that a defendant gave untruthful testimony at trial is an improper basis for departing from recommended sentencing guidelines.
[2] An appellate court may affirm a sentence despite an improper reason for departure if the court can conclude beyond a reasonable doubt that the absence of the improper rea…
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“in light of other permissible reasons expressed by the court it is clear beyond a reasonable doubt that the absence of this improper reason would not have affected appellant's sentence”
Establishes the harmless error analysis applied to sentencing departures based on improper reasons.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of sexual battery, false imprisonment, and aggravated assault with a deadly weapon. At sentencing, the trial court departed fr…
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WENTWORTH, Judge.
Appellant seeks review of judgments of conviction and sentences imposed for the offenses of sexual battery, false imprisonment, and aggravated assault with a deadly weapon. Among other issues, appellant asserts that the lower court committed reversible error by departing from the recommended sentence established pursuant to Fla.R.Crim.P. 3.701 sentencing guidelines. We affirm the orders appealed.
In departing from the recommended guidelines sentence the court expressed a personal belief that appellant gave untruthful testimony at trial. While this is an improper basis for departure, see Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985), in light of other permissible reasons expressed by the court it is clear beyond a reasonable doubt that the absence of this improper reason would not have affected appellant’s sentence. We therefore conclude that in accordance with Albritton v. State, 476 So. 2d 158 (Fla.1985), resentencing is not required.
We note, however, that in Rousseau v. State, 489 So. 2d 828, on motion for rehearing (Fla. 1st DCA 1986), certain categories of invalid reasons were characterized as mandating reversal. Rousseau adopted this approach based upon statements contained in State v. Mischler, 488 So. 2d 523 (Fla.1986), wherein the Florida Supreme Court suggested that certain types of reasons will 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 not establish a per se rule of reversal. Finding that appellant’s sentence was not affected by the impermissible reason involved herein, we apply Albritton and decline to find reversible error. The judgments of conviction and sentences appealed are affirmed.
MILLS and NIMMONS, 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)…ered. MCDONALD, C.J., and OVERTON, SHAW, GRIMES and KOGAN, JJ., concur. BARKETT, J., concurs specially with an opinion. . The First District has also changed its position on this issue in light of these subsequent decisions. See Daniels v. State, 492 So. 2d 449 (Fla. 1st DCA), review denied, 501 So. 2d 1281 (Fla. 1986).…
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Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986)…1218 (Fla.1985) and is also one of the three reasons that fall within the apparent per se reversal rule set forth in State v. Mischler, 488 So. 2d 523 (Fla.1986). Compare Rousseau v. State, 489 So. 2d 828 (Fla. 1st DCA 1986), with Daniels v. State, 492 So. 2d 449 (Fla. 1st DCA 1986). In any event, whether or not Mischler mandates reversal in this case, the state has not shown beyond a reasonable doubt, under the standard of appellate review set forth in Albritton v. State, 476 So. 2d 158 (Fla.1985), that the…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985)
- Rousseau v. State, 489 So. 2d 828 (Fla. 1st DCA 1986)
- Agatone v. State, 487 So. 2d 1060 (Fla. 1986)