JESSIE BANNERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A departure sentence based on both valid and invalid reasons must be remanded for resentencing unless the sentence would have been the same absent the invalid reasons.
Appellant was sentenced to life imprisonment with a mandatory minimum for armed robbery with a firearm, departing from the guidelines. The sentencing …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Petition For Post Conviction Relief cases and more on FLexlaw
PER CURIAM.
Appellant was sentenced in 1984 to life imprisonment with a mandatory minimum of three years incarceration for use of a firearm, based on a conviction of six counts of armed robbery with a firearm. The guidelines called for a maximum of seventeen years. The sentencing court departed from the guidelines for several reasons, some valid and some invalid. The invalid reasons for departure included findings that the defendant did not tell the truth at his trial, Jones v. State, 501 So. 2d 178 (Fla. 4th DCA 1987); that he has shown an utter disregard for society, McClure v. State, 513 So. 2d 1119 (Fla. 2d DCA 1987); that he lacked remorse; and that he denied his guilt against the weight of witness testimony. State v. Mischler, 488 So. 2d 523 (Fla.1986).
The valid reasons included the sentencing court’s finding that defendant used excessive force, Smith v. State, 515 So. 2d 182 (Fla.1987), cert. denied, _ U.S. _, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988); his threats to victims and others in court, Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986); and his pattern of criminal activity over the course of many years. Williams v. State, 504 So. 2d 392 (Fla.1987).
As appellant was sentenced for crimes which were committed prior to the effective date of the amendment to section 921.-001(5), Florida Statutes (1987), we find that Albritton v. State, 476 So. 2d 158 (Fla.1985) applies, and that a departure sentence based on valid and invalid reasons for departure must be remanded for resentencing unless it is clear, beyond a reasonable doubt, that the defendant would have received the same sentence, absent the invalid reasons. See State v. McGriff, 537 So. 2d 107 (Fla.1989). We cannot so conclude in this case. Therefore, appellant’s sentence is reversed; and we remand for resentencing.
GLICKSTEIN and GUNTHER, JJ., concur. ANSTEAD, J., concurs specially with opinion.
ANSTEAD, Judge,
concurring specially.
This is an appeal from a trial court order denying appellant’s petition for post-conviction relief without a hearing. As is noted in the majority opinion the appellant has made a prima facie case showing that some improper reasons were used by the trial court to deviate from the guidelines and impose a life sentence. There is authority for the proposition that a defendant may challenge such a sentence in post-conviction relief proceedings even though the alleged illegal sentence could also have been challenged on appeal. See Yates v. State, 509 So. 2d 1249 (Fla. 5th DCA 1987); Vause v. State, 502 So. 2d 511 (Fla. 1st DCA 1987). I am particularly convinced to agree with the majority that the sentence should be reexamined because the appellant has demonstrated that he was specifically advised in writing, by his appellate counsel, not to raise the sentencing issues on appeal. In fact, counsel refused to raise the sentencing issues on appeal. Under these circumstances I agree that appellant is entitled to a resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Paris D. Varner, 616 So. 2d 988 (Fla. 1993)…ice. We have for review Varner v. State, 597 So. 2d 426 (Fla. 2d DCA 1992), based on express and direct conflict with Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986), and Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Varner was tried and convicted for shooting into a building, shooting into a vehicle, and aggravated assault. Prior to his trial, he allegedly threatened a witness. After co…
-
Paris D. Varner v. State, 597 So. 2d 426 (Fla. 2d DCA 1992)…on, we certify conflict with the First, Third, and Fourth Districts on this issue. Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984), review denied, 471 So. 2d 44 (Fla.1985); Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986); Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989). Accordingly, since both reasons for departure are invalid, we reverse Varner’s sentence and remand with directions that he be resentenced pursuant to the sentencing guidelines. Reversed and remanded. SCHOONOVER, C.J., and RYD…
-
Knox v. State, 549 So. 2d 231 (Fla. 3d DCA 1989)…g reasons and sentenced Knox to thirty years imprisonment. Knox appeals. We affirm. The reasons set forth by the trial court in support of its departure sentence are valid and supported by the record. The use of excessive force, Bannerman v. State, 544 So. 2d 1132 (Fla. 4th DCA 1989); Wright v. State, 538 So. 2d 497 (Fla. 3d DCA 1989); Harris v. State, 482 So. 2d 548 (Fla. 4th DCA 1986); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); victim injury not scored as part of the charged offense, [*232] Wright; B…
Authorities Cited (11 total)
- 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)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- Smith v. State, 515 So. 2d 182 (Fla. 1987)
- House OF Prayer OF Apostolic Faith, Inc. v. Watson, 496 So. 2d 220 (Fla. 3d DCA 1986)
- Yates v. State, 509 So. 2d 1249 (Fla. 5th DCA 1987)
- Vause v. State, 502 So. 2d 511 (Fla. 1st DCA 1987)
- Stingray Jones v. State, 501 So. 2d 178 (Fla. 4th DCA 1987)