RICKY THURMAN BRUMLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court may depart from recommended guidelines sentence on remand if a new, clear and convincing reason is provided, even if the original departure reason was later invalidated.
Appellant sought rehearing, arguing the trial court should have imposed a guidelines sentence after the departure reason was declared invalid. The tri…
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SMITH, Chief Judge.
Appellant seeks review of the trial court’s order sentencing him outside the guidelines for the commission of aggravated battery, kidnapping, and two counts of sexual battery. A guidelines scoresheet was prepared indicating a total score of 440 points and a recommended sentencing range of 17-22 years imprisonment. The trial court imposed the following sentences: 15 years for aggravated battery; life for kidnapping, sentence to run consecutively, and 30 years each for the two counts of sexual battery, sentences to run concurrently with the life sentence. The trial court gave as its written reason for departure the following:
The recommended guidelines sentence is insufficient to properly rehabilitate defendant, protect society and provide retribution.
Since entry of the trial court’s order in the present case, the Florida Supreme Court has held that the above statement can never be a reason for departing from the recommended sentencing guidelines. See Scott v. State, 508 So. 2d 335 (Fla.1987).
Therefore, the sentence is vacated and the case remanded for resentencing in accordance with this opinion.
ERVIN and BOOTH, JJ., concur.
SMITH, Chief Judge.
Appellant seeks rehearing on this court’s opinion released July 21,1987, alleging that on remand the trial court should have been directed to impose a guidelines sentence as a result of the departure reason having been declared invalid, citing Williams v. State, 492 So. 2d 1308 (Fla.1986); Brown v. State, 509 So. 2d 1342 (Fla. 1st DCA 1987); and Foister v. State, 510 So. 2d 371 (Fla 1st DCA 1987).
Under the facts herein, we disagree that the above cases are controlling. In the present case, unlike the foregoing cases, the trial court relied on a single departure reason which was valid under case law from this court when appellant was sentenced but was later invalidated by the Florida Supreme Court. See Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986), rev’d., 508 So. 2d 335 (Fla.1987). Under such circumstances, on remand, a trial court may depart from the recommended guidelines sentence if a clear and convincing reason is given. Johnson v. State, 503 So. 2d 959 (Fla. 1st DCA 1987); Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987) and the cases cited therein. Accordingly, appellant’s motion for rehearing is denied.
In view of the importance of the issue addressed in this opinion and the likelihood that it will continue to recur, we certify to the Supreme Court of Florida the same question as did the Fourth District in Morganti v. State, supra.
REVERSED and REMANDED, and the case is remanded for resentencing.
ERVIN and BOOTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
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Bryant v. State, 148 So. 3d 1251 (Fla. 2014)…courts were permitting the trial courts on remand to again depart from the guidelines if the new reasons given both existed at the time [*1255] of the original sentencing and were valid reasons for departure. Id. at 749-50 (citing Brumley v. State, 512 So. 2d 220 (Fla. 1st DCA 1987); Brewer v. State, 502 So. 2d 1367 (Fla. 2d DCA 1987); Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987); Central Bell v. State, 500 So. 2d 217 (Fla. 1st DCA 1986). But see Albury v. State, 503 So. 2d 460 (Fla. 3d DCA 1987);…
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Brumley v. State, 520 So. 2d 275 (Fla. 1988)…BARKETT, Justice. In Brumley v. State, 512 So. 2d 220 (Fla. 1st DCA 1987), the First District certified a question of great public importance already posed in Morganti v. State, 510 So. 2d 1182, 1184 (Fla. 4th DCA 1987): Whether, when the sole reason initially given for departure from the Guidelines w…
Authorities Cited
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- Spear v. Spear, 510 So. 2d 371 (Fla. 3d DCA 1987)
- Foister v. State, 510 So. 2d 371 (Fla. 1st DCA 1987)
- Hughes v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)
- Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)
- Scott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986)
- Johnson v. State, 503 So. 2d 959 (Fla. 1st DCA 1987)
- Brown v. State, 509 So. 2d 1342 (Fla. 1st DCA 1987)