BRENDA DEMONIA, A/K/A BRENDA COOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant sentenced under the now-unconstitutional 1995 sentencing guidelines must have their sentence recalculated under the 1994 guidelines, even if one of the departure reasons was valid.
[1] A trial court may depart from sentencing guidelines when the offense was committed by means of concealment, guile, or fraud to obtain money, involved a high degree of sop…
[2] Sentencing based on now-unconstitutional guidelines requires remand for recalculation of the departure sentence under the correct guidelines.
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Join FLexlaw to unlock all legal intelligenceDeMonia was convicted of grand theft and received an upward departure sentence based on the 1995 sentencing guidelines. The trial court cited both a v…
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DAVIS, Judge.
Brenda DeMonia raises numerous challenges to her sentence, including a challenge under Heggs v. State, 759 So. 2d 620 (Fla.2000). We remand for recalculation of DeMonia’s departure sentence.
DeMonia was convicted of numerous offenses arising out of her fraudulent theft of funds from her employer. Using a 1995 sentencing guidelines scoresheet, the trial court sentenced DeMonia for second-degree felony grand theft to an upward departure sentence of ten years’ incarceration. The court offered two reasons for departure. The first reason is contained in section 921.0016(n), Florida Statutes (1995), which allows the court to depart where the offense was committed by means of concealment, guile, or fraud to obtain money, the offense involved a high degree of sophistication, the defendant used position or status to facilitate commission of the offense, and the defendant had been involved in similar conduct in the past. Although the court offered, in addition to this valid reason, one invalid reason for departure, that erroneous reason does not invalidate the departure. See § 921.001(6), Fla. Stat. (Supp.1994).
However, because the trial court sentenced DeMonia using the now-unconstitutional 1995 guidelines, we must consider whether Heggs requires us to remand for recalculation of DeMonia’s scoresheet under the 1994 guidelines.1 Pursuant to Hope v. State, 797 So. 2d 1252 (Fla. 2001), we remand for recalculation of DeMonia’s departure sentence.
Remanded for recalculation.
BLUE, C.J., and THREADGILL, J„ Concur. . The information specified that DeMonia committed the grand theft between December 1, 1996, and September 30, 1998. The Heggs window encompasses all offenses committed between October 1, 1995, and May 24, 1997. Trapp v. State, 760 So. 2d 924 (Fla.2000). The fact that a portion of DeMonia's continuing offense fell outside of the window period is not fatal to Heggs review, however, since the beginning date of the offense did fall within the applicable window period. See Hartman v. State, 773 So. 2d 1241 (Fla. 3d DCA 2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Gwenda Jean Lemon, 825 So. 2d 927 (Fla. 2002)…the First and Second District Courts have followed our holding in Hope and have remanded Heggs claims for recalculation of departure sentences, the same relief sought here. See Fleming v. State, 808 So. 2d 287 (Fla. 1st DCA 2002); DeMonia v. State, 806 So. 2d 545 (Fla. 2d DCA 2001). As noted in Fleming: “In Hope v. State, 797 So. 2d 1252 (Fla.2001), the Florida Supreme Court held that a valid departure sentence that was imposed pursuant to the 1995 guidelines should be reconsidered after the recalculation of…
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Kinsey v. State, 831 So. 2d 1253 (Fla. 2d DCA 2002)…e applicable. On remand, Kinsey must be resentenced under the 1994 version of the sentencing guidelines since his offense date is also within the window period for relief pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). See DeMonia v. State, 806 So. 2d 545, 546 n. 1 (Fla. 2d DCA 2001) (recognizing that the window period for a Heggs challenge is from October 1, 1995, to May 24, 1997). In addition, as authorized by Everett, the trial court at resentencing has the discretion to impose an upward departure…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Hope v. State, 797 So. 2d 1252 (Fla. 2001)
- Jairo Dussan v. Fla. Unemployment Appeals Comm'n, 773 So. 2d 1241 (Fla. 3d DCA 2000)
- Gema Hartman v. State, 773 So. 2d 1241 (Fla. 3d DCA 2000)