RICHARD BRAINARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed Brainard's ten-year sentence for drug possession imposed after a probation violation, rejecting his challenge to the departure from sentencing guidelines. However, the court reversed and remanded for correction of the sentence to properly credit jail time served.
The trial court properly departed from sentencing guidelines because, although one reason for departure (drug dealer status) was invalid under precedent, the court's primary reasons—Brainard's unamenability to rehabilitation and the Georgia probation violation—were valid, and the invalid reason would not have affected the departure decision. However, the sentence must be corrected to properly reflect credit for jail time served.
[1] A trial court may depart from sentencing guidelines if it relies on valid reasons, even if it also considers an invalid reason, provided the absence of the invalid reason…
[2] A defendant's unamenability to rehabilitation and prior probation violations not factored into sentencing guidelines recommendations can constitute valid reasons for a de…
Previewing 2 of 4 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“At least one of the reasons for departure, Mr. Brainard's status as a drug dealer, was invalid.”
Establishes that the trial court relied on an invalid sentencing rationale under precedent
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrainard was sentenced to ten years imprisonment plus five years probation for possession of marijuana exceeding one hundred pounds based on a 1976 of…
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ALTENBERND, Judge.
We affirm the defendant’s sentence which departed from guidelines, but remand for a correction of the sentence to reflect credit for jail time served. Mr. Brainard was sentenced to ten years’ im prisonment, to be followed by five years’ probation, for possession of marijuana in excess of one hundred pounds. The sentence was imposed on a 1976 offense following a violation of probation. The violation of probation involved a 1987 federal charge of possessing counterfeit money, as well as a technical violation. Mr. Brainard elected to be sentenced under the guidelines.
Between the 1976 drug charge and the 1987 violation of probation, Mr. Brainard had committed drug-related offenses in Georgia and in DeSoto County, Florida. His criminal activity in DeSoto County, Florida, resulted in a violation of the Georgia probation. This violation was not factored into the sentence recommended by guidelines. The violation of probation concerning the 1976 offense occurred little more than two years after he “successfully” completed parole on the DeSoto County offense.
The trial court departed from the sentence recommended by guidelines for several reasons. At least one of the reasons for departure, Mr. Brainard’s status as a drug dealer, was invalid. Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988). The trial court, however, relied primarily on Mr. Brainard’s unamenability to rehabilitation and the Georgia violation of probation which had not affected the guidelines recommendation. These were valid reasons for departure in Mr. Brainard’s case. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); DePaul v. State, 505 So. 2d 659 (Fla. 2d DCA 1987). The record establishes beyond a reasonable doubt that the absence of any invalid reason would not have affected the trial court’s departure sentence. Albritton v. State, 476 So. 2d 158 (Fla.1985). We, therefore, affirm the trial court’s guidelines departure sentence.
The sentence, however, failed to properly specify the amount of credit for jail time which Mr. Brainard had served. We, therefore, reverse and remand this matter for a correction of the sentence to reflect credit for jail time served. The defendant does not have to be present for resentencing.
Affirmed in part, reversed in part, and remanded for correction of sentence.
RYDER, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Arkadile v. State, 695 So. 2d 1318 (Fla. 2d DCA 1997)…to reflect this credit. Accordingly, we remand Arkadile’s sentence for false imprisonment for correction to reflect that Arkadile is entitled to 216 days credit for time served. Arkadile need not be present for resentencing. See Brainard v. State, 550 So. 2d 78 (Fla. 2d DCA 1989). In all other respects, we affirm. DANAHY, A.C.J., and ALTENBERND, J., concur.…
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Smith v. State, 608 So. 2d 89 (Fla. 2d DCA 1992)…he displayed a continuing and escalating pattern of criminal behavior. Lack of amenability to rehabilitation has been recognized in earlier cases as a possible basis for departure. Livingston v. State, 565 So. 2d 1288 (Fla.1990); Brainard v. State, 550 So. 2d 78 (Fla. 2d DCA 1989). We conclude that the reasons underlying such departures in earlier cases are now either included in the defendant’s scoresheet as prior record or are governed by the new rules concerning departures in cases of multiple violations…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Americo Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988)
- Vernroy Ahnin v. State, 505 So. 2d 659 (Fla. 2d DCA 1987)