JOHN HENRY BARRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Henry Barry appeals his resentencing, challenging the trial court's imposition of consecutive minimum mandatory sentences that exceeded the guideline sentencing range. The court reverses and remands because the trial court should have imposed concurrent minimum mandatory sentences to comply with the previously ordered guideline maximum of seventeen years.
The trial court erred by imposing consecutive minimum mandatory sentences that exceeded the guideline maximum. When minimum mandatory sentences preclude sentencing within the permitted guidelines, the trial court must impose either concurrent or consecutive minimum mandatory sentences to come as close to the guideline range as possible. The concurrent approach was required here to comply with the guideline maximum of seventeen years.
[1] A trial court errs by departing from sentencing guidelines without providing contemporaneous reasons.
[2] When statutory minimum mandatory sentences preclude sentencing within the permitted guidelines, a trial court must impose either concurrent or consecutive minimum mandato…
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Join FLexlaw to unlock all legal intelligence“Although consecutive minimum mandatory sentences are permitted when the crimes occurred at separate times and places, the imposition of consecutive minimum mandatory sentences is not required.”
Establishes that consecutive minimum mandatory sentences are discretionary, not mandatory, even when crimes occur at different times and places
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Join FLexlaw to unlock all legal intelligenceBarry was convicted of multiple offenses including RICO, cocaine trafficking (multiple counts), conspiracy to traffic cocaine, and perjury. Following …
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PER CURIAM.
The appellant, John Henry Barry, challenges the trial court’s resentencing. We find that the trial court erred in departing from the sentencing guidelines and, accordingly, reverse and remand for another resentencing.
The appellant was originally adjudicated guilty and sentenced as follows: violation of the Florida Racketeering Influenced and Corrupt Organization Act (count I), thirty years in prison; trafficking in cocaine (count AO, fifteen years in prison concurrent with count I (minimum mandatory fifteen years); trafficking in cocaine (count VII), fifteen years in prison consecutive to count V (minimum mandatory fifteen years); conspiracy to traffick in cocaine (count VIII), fifteen years in prison concurrent with count V (minimum mandatory fifteen years); trafficking in cocaine (count IX), fifteen years in prison con secutive to count V (minimum mandatory fifteen years); and perjury (count XII), five years in prison concurrent with count I.
The appellant argued in his first appeal that the trial court erred in imposing a departure sentence without providing contemporaneous reasons. This court in Barry v. State, 626 So. 2d 270 (Fla. 2d DCA 1993), agreed and reversed the appellant’s sentences and remanded for resentencing within the guidelines maximum permitted sentence of seventeen years in prison.
On remand, the trial court resentenced the appellant to twelve years in prison on count I and left the consecutive minimum mandatory sentences intact. The appellant filed a timely notice of appeal challenging the new sentences imposed upon him. The appellant now contends that the trial court erred in leaving the stacked minimum mandatory sentences intact since they exceeded the guidelines maximum of seventeen years in prison. We agree.
Although consecutive minimum mandatory sentences are permitted when the crimes occurred at separate times and places, the imposition of consecutive minimum mandatory sentences is not required. See Short v. State, 572 So. 2d 1007 (Fla. 3d DCA 1991). Where statutory minimum mandatory sentences preclude sentencing within the permitted guidelines, the trial court, in order to come as close to the permitted guidelines range as possible, must impose either concurrent or consecutive minimum mandatory sentences. Zamora v. State, 584 So. 2d 156 (Fla. 2d DCA 1991). See also Branam v. State, 554 So. 2d 512 (Fla.1990).
In the appellant’s first appeal, we reversed and remanded for resentencing within the guidelines. In order to resentence the appellant within the permitted range of the guidelines, i.e. seventeen years, the trial court on remand should have imposed concurrent minimum mandatory sentences and erred by failing to do so.
We, accordingly, reverse the sentences and remand to the trial court for the imposition of concurrent minimum mandatory sentences.
Reversed and remanded with instructions.
SCHOONOVER, A.C.J., and PATTERSON and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Timonere v. State, 666 So. 2d 197 (Fla. 2d DCA 1995)…es from resentencing. Timonere contends that the trial court failed to abide by our mandate by stacking minimum mandatory terms of imprisonment. We agree that such stacking was inappropriate and we remand for resentencing pursuant to Barry v. State, 654 So. 2d 1229 (Fla. 2d DCA 1995). Remanded. THREADGILL, C.J., and FULMER, J., concur.…
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Fannin v. State, 751 So. 2d 158 (Fla. 2d DCA 2000)…sed and remanded both cases, even though a different panel had affirmed Fannin. See Barry v. State, 626 So. 2d 270 (Fla. 2d DCA 1993) (reversed October 29, 1993, and remanded for re-sentencing within guidelines), appeal after remand, Barry v. State, 654 So. 2d 1229 (Fla. 2d DCA 1995) (reversed and remanded for re-sentencing to single fifteen-year mandatory minimum with concurrent sentences for all other counts); see also Timonere v. State, 631 So. 2d 1138 (Fla. 2d DCA 1994) (reversed and remanded for re-senten…1 / 2
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Darrisaw v. State, 682 So. 2d 214 (Fla. 4th DCA 1996)…es recommendation, the trial judge must impose either concurrent or consecutive sentences ... in order to come as dose as possible to the guidelines scoresheet recommendation.” Id. at 513-14 (emphasis supplied). Branam was applied in Barry v. State, 654 So. 2d 1229 (Fla. 2d DCA), rev. denied, 660 So. 2d 715 (Fla.1995). Barry is directly on point. In Barry, the defendant was also before the court on resentencing within the guidelines after a successful appeal of a departure sentence. Just as in the instant case…
Authorities Cited
- Branam v. State, 554 So. 2d 512 (Fla. 1990)
- Short v. State, 572 So. 2d 1007 (Fla. 3d DCA 1991)
- Zamora v. State, 584 So. 2d 156 (Fla. 2d DCA 1991)
- Barry v. State, 626 So. 2d 270 (Fla. 2d DCA 1993)
- Jenkins v. State, 626 So. 2d 270 (Fla. 2d DCA 1993)