FREEMAN BRINTLEY, PETITIONER,
v.
HARRY K. SINGLETARY, JR., RESPONDENT
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Freeman Brintley petitioned for a writ of habeas corpus, claiming ineffective assistance of counsel on direct appeal for failing to challenge his sentencing. The court granted the petition, finding that Brintley's ten-year sentence was erroneously imposed because the trial court applied an amended habitual offender statute that did not take effect until after his August 1988 offense, requiring resentencing.
The court granted the habeas corpus petition and held that Brintley's sentence was erroneously imposed because the trial court applied the amended habitual offender statute retroactively to an offense committed before its effective date. The case was remanded for resentencing, during which the trial court may consider a valid departure from guidelines if appropriate criteria exist.
[1] A defendant receives ineffective assistance of counsel when counsel fails to contest an erroneously imposed sentence.
[2] A habitual offender statute that became effective after the commission of an offense cannot be applied retroactively to enhance the sentence for that offense.
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Join FLexlaw to unlock all legal intelligence“Freeman Brintley petitions this court for a writ of habeas corpus. He contends, and we agree, that he received ineffective assistance of counsel in the direct appeal from his conviction and sentence for possession of firearm by convicted felon. Specifically, counsel neglected to contest the legality of Brintley's ten-year prison sentence.”
Establishes the core claim of ineffective assistance and the specific failure—neglect to challenge sentencing legality
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Join FLexlaw to unlock all legal intelligenceFreeman Brintley was convicted of possession of a firearm by a convicted felon and sentenced to ten years in prison. The trial court imposed this enha…
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PER CURIAM.
Freeman Brintley petitions this court for a writ of habeas corpus. He contends, and we agree, that he received ineffective assistance of counsel in the direct appeal from his conviction and sentence for possession of firearm by convicted felon.1 Specifically, counsel neglected to contest the legality of Brintley’s ten-year prison sentence. We now conclude that the sentence was erroneously imposed, requiring us to remand this case for resentencing.
The ten-year sentence represents a considerable departure from the range recommended under sentencing guidelines. However, we find no indication that the trial court considered this a departure case. Instead, the court appears to have believed that it could impose an enhanced sentence under the habitual offender statute in lieu of following the guidelines. Ordinarily this would be correct. See § 775.084(4)(e); Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA 1990). However, section 775.084(4)(e) became effective October 1, 1988. § 6, Ch. 88-131, Laws of Fla. Brintley’s offense was committed in August, 1988, or before the effective date of the revised habitual offender statute. Accordingly, it was error to apply that version of the statute to his case. Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992); Carroll v. State, 567 So. 2d 954 (Fla. 4th DCA 1990). Under the law in effect at the time of Brintley’s offense it would have been improper to “ha-bitualize” him since such enhancement was not necessary to harmonize the length of sentence with the guideline recommendation. Winters v. State, 522 So. 2d 816 (Fla.1988); Whitehead v. State, 498 So. 2d 863 (Fla.1986).2
The petition for writ of habeas corpus is hereby granted and this case is remanded to the trial court for resentencing consistent with this opinion. Since the trial court was unaware it was imposing a departure sentence, it may consider departing from the guidelines after remand, provided there exist valid criteria for doing so. State v. Betancourt, 552 So. 2d 1107 (Fla.1989). Any departure from guidelines must be accompanied by contemporaneous written findings. Ree v. State, 565 So. 2d 1329 (Fla.1990).
Petition granted.
DANAHY, A.C.J., and SCHOONOVER and PARKER, JJ., concur. . § 790.23, Fla.Stat. (1987).
. Whitehead involved an upward departure from sentencing guidelines based on a finding that the defendant qualified as a habitual offender. In the present case there is no departure order because, as noted, the trial court most likely did not think it was departing from the guidelines so much as avoiding them altogether. Nevertheless, because application of the amended habitual offender sentence was error, in practical effect this is a departure sentence. The lack of a written departure error constitutes reversible error. Ree v. State, 565 So. 2d 1329 (Fla.1990). The holding in Ree, which issued prior to the time Brintley’s appeal was perfected, is applicable to all cases pending on appeal at the time. Smith v. State, 598 So. 2d 1063 (Fla.1992).
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Gervasoni v. State, 766 So. 2d 478 (Fla. 5th DCA 2000)…hes that no reasons were given for the departure, other than petitioner’s habitual offender status. Petitioner’s áppellate counsel did not raise this sentencing issue in the direct appeal, instead filing an Anders brief.1 In Brintley v. Singletary, 605 So. 2d 1303 (Fla. 2d DCA 1992), the court held that appellate counsel was ineffective for failing to contest the legality of an habitual felony offender sentence which exceeded the guidelines, in violation of the law in effect at the time of the offense. At the…
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Doak v. State, 671 So. 2d 845 (Fla. 2d DCA 1996)…idelines as to that offense. We disagree. Where a trial court is unaware that it has imposed a departure sentence, it may consider departing from the guidelines upon remand “provided there exist valid criteria for doing so.” Brintley v. Singletary, 605 So. 2d 1303, 1304 (Fla. 2d DCA 1992). See also Henderson v. State, 577 So. 2d 653 (Fla. 1st DCA 1991). Here, Doak’s unscored capital felony conviction would have been a proper basis for a departure on the robbery conviction. See Freeze v. State, 553 So. 2d 750…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA 1990)
- Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992)
- Hastings v. State, 567 So. 2d 954 (Fla. 4th DCA 1990)
- Carroll v. State, 567 So. 2d 954 (Fla. 4th DCA 1990)