McCullum v. State, 86-2211
Decision Date | 23 December 1986 |
Docket Number | No. 86-2211,86-2211 |
Parties | 12 Fla. L. Weekly 65 Roy McCULLUM, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Roy McCullum, in pro. per.
Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
A jury found appellant guilty of conspiracy to commit a felony (armed robbery), § 777.04(4)(b), Fla.Stat. (1983), a second degree felony punishable by a term of imprisonment not exceeding 15 years, § 775.082(3)(c), Fla.Stat. (1983), and robbery without a firearm, as a lesser included offense, § 812.13, Fla.Stat. (1983), also a second degree felony punishable by a term of imprisonment not exceeding 15 years, § 775.082(3)(c). The trial court imposed a sentence of two concurrent 15 year terms of imprisonment. The sentence was a departure from the guidelines' recommended range of 3 1/2 to 4 1/2 years. No objection to the departure sentence was made by defense counsel before the trial court. On appeal, this court affirmed the conviction, concluding that the sole point raised regarding the prosecution's playing of defendant's taped confession during the rebuttal portion of its closing argument did not constitute reversible error. McCullum v. State, 488 So.2d 125 (Fla. 3d DCA 1986).
Appellant filed a motion for postconviction relief alleging, for the first time, error in the sentence imposed by the trial court outside the guidelines and further alleging ineffective assistance of trial and appellate counsel for failing to enter a contemporaneous objection and raise such error in the prior McCullum appeal. The trial court denied the motion as legally insufficient, and thus did not hold an evidentiary hearing or attach portions of the record which might refute the allegations.
Upon appellant's appeal from the order summarily denying postconviction relief, this court requested the state to respond to the issues raised in appellant's motion. The state concedes that four of the twelve reasons given by the trial court as grounds for its departure are invalid. Its argument, however, with which we do not disagree, is that under Smith v. State, 457 So.2d 1380 (Fla.1984), the sentencing issue is barred from consideration in a Rule 3.850 proceeding since it could have been raised on direct appeal.
During the pendency of the McCullum appeal, in fact only twelve days prior to the release of our McCullum opinion, the Florida Supreme Court decided State v. Whitfield, 487 So.2d 1045 (Fla.1986). Whitfield held that sentencing errors which do not produce an illegal sentence or an unauthorized departure from the sentencing guidelines still require a contemporaneous objection to be preserved for appellate review. Id. at 1046. Significantly, Whitfield would have allowed the instant sentencing error to be raised on appeal as an unauthorized departure, despite the lack of an objection by defense counsel before the trial court. This being so, we find it appropriate to treat the instant appeal as a petition for writ of habeas corpus, see Smith v. State 400 So.2d 956, 960 (Fla.1981); Peri v. State, 458 So.2d 62 (Fla. 3d DCA 1984); White v. State, 456 So.2d 1302 (Fla. 2d DCA 1984), and grant relief.
We are not convinced by the state's argument that the absence of improper reasons would not have affected the extent of the departure. See Lerma v. State, 497 So.2d 736 (Fla.1986) ( ); Albritton v. State, 476 So.2d 158 (Fla.1985) ( ). Accordingly, we vacate the sentence imposed and remand for resentencing.
Upon remand, the trial court should resentence appellant within the guidelines unless sufficient clear and convincing reasons are given for departure. See Scurry v. State, 489 So.2d 25, 29 (Fla.1986) ( ); Brown v. State, 480 So.2d 225 (Fla. 5th DCA 1985) ( ); Sabb v. State, 479 So.2d 845 (Fla. 1st DCA 1985) ( ); Thompson v. State, 478 So.2d 462 (Fla. 1st DCA 1985) ( ); Steiner v. State, 469 So.2d 179 (Fla. 3d DCA) (, )review denied, 479 So.2d 118 (Fla.1985); Burch v. State, 462 So.2d 548 (Fla. 1st DCA) ( ), decision approved, 476 So.2d 663 (Fla.1985); Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984) (, )review denied, 471 So.2d 44 (Fla.1985); Dickey v. State, 458 So.2d 1156 (Fla. 1st DCA 1984) ( ); cf. Posey v. State, 487 So.2d 429 (Fla. 5th DCA 1986) ( ); State v....
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