GARY FAIN, 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.
The court held that due process requires Fain to be sentenced according to applicable guidelines, and the State may request an upward departure.
Gary Fain challenged the summary denial of his motion for postconviction relief concerning sentencing issues. This case has a complex procedural histo…
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
[*763] PER CURIAM.
Gary Fain challenges the summary denial of his motion for. postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
This case has a long ánd complex history that, hopefully, is unique. In an earlier appeal, having failed to recognize the same sentencing issue that Fain raises herein, we reversed an order denying Fain’s motion to correct an illegal sentence. See Fain v. State, 780 So. 2d 285 (Fla. 2d DCA 2001). Fain was unrepresented in that proceeding, and we did not obtain input from the State. • Regrettably, our instructions on remand in that appeal were not completely accurate, and our confusion has, in turn, resulted in continuing confusion in the trial court. However, following an exhaustive review of both the facts and the law, we now conclude that due process entitles Fain to be sentenced in accordance with the sentencing guidelines applicable to Fain’s convictions, but that .the State also has the right to request an upward departure sentence.
Thus, we reverse the summary denial of Fain’s rule 3.850 motion and remand for the trial court to conduct another sentencing hearing in accordance with the statutes and rules applicable to the sentencing guidelines that apply to Fain’s convictions. Should the trial court determine that an upward departure is appropriate under the law and the facts, it must file'contemporaneous written reasons for the departure.
Reversed; remanded with directions.
ALTENBERND, C.J., and CASANUEVA and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013)…tside of the recommended range, does not constitute a departure). In finding an upward departure to be appropriate under the applicable law and facts, the sentencing judge “must file contemporaneous written reasons for the departure.” Fain v. State, 888 So. 2d 762, 763 (Fla. 2d DCA 2004). Where multiple reasons are given, “ ‘the departure shall be upheld when at least one circumstance or factor justifies the departure.’ ” Kirby v. State, 553 So. 2d 1290, 1292 (Fla. 1st DCA 1989) (quoting § 921.001(5), Fla. St…
-
Errol D. Brooks v. State, 937 So. 2d 827 (Fla. 2d DCA 2006)…ot completely accurate. Therefore, on remand, Brooks is entitled to be resentenced in accordance with the sentencing guidelines applicable to his conviction, but the State shall have the right to seek an upward departure sentence. See Fain v. State, 888 So. 2d 762, 763 (Fla. 2d DCA 2004). If the trial court finds an upward departure to be appropriate, it must file contemporaneous written reasons for the departure. Id. Reversed and remanded with directions. WHATLEY and STRINGER, JJ„ Concur.…
Authorities Cited
- Fain v. State, 780 So. 2d 285 (Fla. 2d DCA 2001)