Griffis v. State, BJ-356

• Decision Date: 30 October 1986
• Docket Number: No. BJ-356,BJ-356
• Citation: 497 So.2d 296,11 Fla. L. Weekly 2300
• Parties: 11 Fla. L. Weekly 2300 Joseph GRIFFIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 296

497 So.2d 296

11 Fla. L. Weekly 2300

Joseph GRIFFIS, Appellant, v. STATE of Florida, Appellee.

No. BJ-356.

District Court of Appeal of Florida,

First District.

Oct. 30, 1986.

Rehearing Denied Nov. 25, 1986.

Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Appellant appeals the trial court judge's departure from the recommended guidelines sentence of 17-22 years' incarceration to a term of 30 years. The defendant's failure to make a contemporaneous objection to the departure does not foreclose this appeal. State v. Whitfield, 487 So.2d 1045 (Fla.1986).

The trial court listed eight reasons for justifying his departure, the first three of which we find to be valid, and the remainder invalid. Ordinarily we would be required by the rule stated in Albritton v. State, 476 So.2d 158 (Fla.1985), to reverse the departed sentence, because both valid and invalid grounds have been advanced by the trial court, however, in that the trial court has stated that if any one of the reasons given were later upheld as valid, it would impose the same sentence, we affirm on the theory that the sentence on review meets the reasonable doubt standard of Albritton. See Leopard v. State 491 So.2d 1284 (Fla. 1st DCA 1986).

Since we perceive that trial judges may continue to include similar standard language as that at bar in departure sentences, we certify the following question to be one of great public importance:

DOES A TRIAL COURT'S STATEMENT, MADE AT THE TIME OF DEPARTURE FROM THE SENTENCING GUIDELINES, THAT IT WOULD DEPART FOR ANY ONE OF THE REASONS GIVEN, REGARDLESS OF WHETHER BOTH VALID AND INVALID REASONS ARE FOUND ON REVIEW, SATISFY THE STANDARD SET FORTH IN ALBRITTON V. STATE ?

AFFIRMED.

WIGGINTON, J., concurs.

BARFIELD, J., concurs specially with an opinion.

BARFIELD, Judge, concurring:

Under our interpretation of Albritton in Nixon v. State, 494 So.2d 222 (Fla. 1st DCA 1986), when the appellate court is presented with both valid and invalid reasons for departure from a recommended guidelines sentence, it must remand the case for resentencing unless it is able to determine beyond a reasonable doubt that the trial judge would have departed from the guidelines to the extent he did without consideration of the invalid reason(s) and solely on the basis of the valid reason(s).

This is the interpretation and application made by the Florida Supreme Court in State v. Young, 476 So.2d 161, 162 (Fla.1985), in which the court said: "It is clear that the district court was unable to determine beyond a reasonable doubt that the impermissible reasons did not affect the departure sentence. We approve the decision reversing the sentence and remanding the case for resentencing."

In Nixon, this court remanded the case for resentencing because it was unable to make such a determination, observing:

There is absolutely nothing in this record to tell us what the trial judge would have done if he had not considered that the defendant had lied under oath at trial. In view of the other three valid reasons, departure seems reasonable to this court, but that is not the test. This record contains nothing from which this court can exclude the very strong possibility that the trial judge considered lying under oath more egregious conduct than being constantly in trouble with the law. Given that concern, and the opportunity to reconsider the sentence imposed without taking into account the impermissible reason for departure, would this trial judge have departed from the recommended guidelines sentence to the extent that he did, if at all?

494 So.2d at 224.

In Leopard v. State, 491 So.2d 1284, 1286 (Fla. 1st DCA 1986), again presented with valid and invalid reasons for departure, this court affirmed the departure sentence because it found that the trial judge's statement during sentencing, that any one of the reasons given was sufficient to justify the...