JOSE LUIS HERNANDEZ, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Hernandez's appellate counsel failed to challenge a sentence imposed outside sentencing guidelines that lacked clear and convincing written reasons for departure. The court granted his habeas corpus petition for ineffective assistance of appellate counsel and remanded for resentencing.
Appellate counsel was ineffective for failing to challenge the guideline departure, and the petition for habeas corpus is granted. The sentence is vacated and the case is remanded for resentencing, requiring the trial court to either resentence within guidelines or provide clear and convincing written reasons for any departure.
[1] Appellate counsel's failure to challenge a sentence imposed outside sentencing guidelines, where the trial court neglected to provide clear and convincing written reasons…
[2] A trial court's sentence must either be within the sentencing guidelines, as modified by any minimum mandatory requirements, or be supported by clear and convincing writt…
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Join FLexlaw to unlock all legal intelligence“The record demonstrates that appellate counsel failed to provide effective assistance: he did not challenge on direct appeal the sentence imposed by the trial court outside sentencing guidelines even though the trial court neglected to provide clear and convincing written reasons for departure.”
Establishes the core holding that appellate counsel's failure to challenge a guideline departure without adequate written reasons constitutes ineffective assistance.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHernandez was sentenced by the trial court to a sentence that exceeded both the recommended sentencing guidelines and the five-year mandatory minimum …
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PER CURIAM.
We have jurisdiction to consider the petition of Jose Luis Hernandez for a writ of habeas corpus predicated on ineffective assistance of appellate counsel. Smith v. State, 400 So. 2d 956 (Fla.1981); Peri v. State, 458 So. 2d 62 (Fla. 3d DCA 1984); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The record demonstrates that appellate counsel failed to provide effective assistance: he did not challenge on direct appeal the sentence imposed by the trial court outside sentencing guidelines even though the trial court neglected to provide clear and convincing written reasons for departure. State v. Chaplin, 490 So. 2d 52 (Fla.1986); State v. Whitfield, 487 So. 2d 1045 (Fla.1986); State v. Jackson, 478 So. 2d 1054 (Fla.1985); Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986); Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986); Mortimer v. State, 490 So. 2d 93 (Fla. 3d DCA 1986); Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986); Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986); Fla.R. Crim.P. 3.701(d)11; but cf. Speights v. State, 495 So. 2d 882, 883 (Fla. 2d DCA 1986) (“if adequate reasons are listed by the sentencing judge in that space provided on the approved sentencing guidelines scoresheet, a separate written order delineating reasons for departure is unnecessary”); see also Stone v. State, 500 So. 2d 572 (Fla. 2d DCA 1986).
Finding merit in petitioner’s contention, we grant the relief sought.
We note that the trial court correctly recognized that the five-year mandatory minimum sentence prescribed by section 893.135, Florida Statutes (1983), takes precedence over the recommended guidelines sentence. Vanover v. State, 498 So. 2d 899 (Fla.1986); Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985); Fla.R. Crim.P. 3.701(d)9; see also Pedraza v. State, 493 So. 2d 1122 (Fla. 3d DCA 1986).
Here, however, the trial court’s sentence exceeded both the guidelines and mandatory minimum sentence. We therefore grant the petition, vacate the sentence, and remand the cause to the trial court for resentencing. On remand, the trial court should either resentence Hernandez within the guidelines as modified by the minimum mandatory requirement or demonstrate by clear and convincing written reasons its grounds for departure.
Petition granted; sentence vacated; remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Domberg v. State, 661 So. 2d 285 (Fla. 1995)…y entered its previously late-filed written reasons for departure and resentenced Domberg to his initial sentences. See, e.g., Barbera v. State, 605 So. 2d 413 (Fla.1987), receded from by Pope v. State, 561 So. 2d 554 (Fla.1990); Hernandez v. State, 501 So. 2d 163 (Fla. 3d DCA 1987). Not until we rendered our decision in Pope v. State, 561 So. 2d 554 (Fla.1990), did we determine that, on remand from a guidelines departure error, resentencing must be within the guidelines. Pope was issued two years after the c…
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Jacobs v. State, 522 So. 2d 540 (Fla. 3d DCA 1988)…tate clear and convincing reasons for departure where the sentence exceeds both the guidelines and the mandatory minimum sentence. See Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987), review denied, 519 So. 2d 987 (Fla.1988); Hernandez v. State, 501 So. 2d 163 (Fla. 3d DCA 1987); Pedraza v. State, 493 So. 2d 1122, 1123 (Fla. 3d DCA 1986), review denied, 504 So. 2d 768 (Fla.1987).…
Authorities Cited (17 total)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Smith v. State, 400 So. 2d 956 (Fla. 1981)
- Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Stone v. State, 500 So. 2d 572 (Fla. 2d DCA 1986)
- Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986)
- Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986)
- Corum v. State, 484 So. 2d 102 (Fla. 1st DCA 1986)