JOHNNIE MACK GRAHAM, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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.
The court held that the petitioner received ineffective assistance of appellate counsel because counsel failed to raise the issue of an improper upward departure sentence on direct appeal.
The petitioner was convicted of second-degree murder and sentenced to life in prison, exceeding the recommended sentencing guidelines. The trial court…
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 Upward Departure Sentence cases and more on FLexlaw
FULMER, Judge.
Johnnie Mack Graham, Jr., has filed a petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(c). Graham raises two issues, only one of which has merit, and upon which we grant relief.
On June 26, 2000, Graham was convicted of a second-degree murder committed on August 16, 1998. His sentence points totaled 361.8 and the maximum recommended sentence under the guidelines was 417.2 months. The trial court, without stating reasons for departure, sentenced Graham to life in prison. Section 921.001(6), Florida Statutes (1997), provides that “[departures from the recommended sentences established in the guidelines are articulated in writing.” A court may impose a life sentence without written explanation if the total sentence points are 363 or greater, § 921.0014(2); however, Graham’s sentencing points totaled 361.8. The State agrees that, had appellate counsel raised this issue on direct appeal, Graham would have been entitled to resentencing within the guidelines.
The record is clear, and the State concedes, that Graham is entitled to resentencing. Accordingly, this petition is granted. We reverse the sentence and remand for the trial court to resentence Graham pursuant to the sentencing guidelines.
Petition granted, sentence reversed, remanded for resentencing.
SILBERMAN and WALLACE, JJ., Concur.