Behrens v. State

District Court of Appeal of Florida

Behrens v. State

2 So. 3d 391, 2009 Fla. App. LEXIS 60, 2009 WL 30135

CourtDistrict Court of Appeal of Florida

DecidedJanuary 7, 2009

Docket4D08-3291

StatusPublished

Cited by1 cases

This text of 2 So. 3d 391 (Behrens v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Behrens v. State, 2 So. 3d 391, 2009 Fla. App. LEXIS 60, 2009 WL 30135 (Fla. Ct. App. 2009).

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Opinion

WARNER, J.

In this appeal from the summary denial of his motion for postconviction relief pursuant to rule 3.850, appellant challenges the summary denial of eight of his twenty claims of trial counsel ineffectiveness. We affirm as to all claims and write to address a sentencing issue.

During sentencing, appellant’s trial counsel did not object to his upward departure sentence for armed sexual battery *392 and burglary with a battery based upon two prior convictions for armed burglary which were already considered in the calculation of his presumptive guidelines sentence. Appellant claims this was ineffective assistance, as a departure could not be based upon a conviction already factored into the guidelines sentence. We disagree, as the sentence was imposed under section 921.0016(3)(r), Florida Statutes (1995), which permits an upward departure where “[t]he primary offense is scored at offense level 7 or higher and the defendant has been convicted of one more offense that scored, or would have scored, at an offense level 8 or higher.” See Elmer v. State, 732 So.2d 21 (Fla. 1st DCA 1999).' The upward departure sentence was consistent with this statute.

Appellant cites to Damiano v. State, 944 So.2d 516 (Fla. 4th DCA 2006), for the proposition that a prior conviction scored in a guidelines sentence cannot again be used as a reason to impose an upward departure. Damiano was decided based upon 1993 sentencing law, and section 921.0016(3)(r), Florida Statutes, became effective January 1, 1994. Therefore, Dami-ano is distinguishable from this case, where appellant’s offense was committed in 1995.

Affirmed.

MAY and DAMOORGIAN, JJ., concur.

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WARNER, J.

In this appeal from the summary denial of his motion for postconviction relief pursuant to rule 3.850, appellant challenges the summary denial of eight of his twenty claims of trial counsel ineffectiveness. We affirm as to all claims and write to address a sentencing issue.

During sentencing, appellant’s trial counsel did not object to his upward departure sentence for armed sexual battery *392 and burglary with a battery based upon two prior convictions for armed burglary which were already considered in the calculation of his presumptive guidelines sentence. Appellant claims this was ineffective assistance, as a departure could not be based upon a conviction already factored into the guidelines sentence. We disagree, as the sentence was imposed under section 921.0016(3)(r), Florida Statutes (1995), which permits an upward departure where “[t]he primary offense is scored at offense level 7 or higher and the defendant has been convicted of one more offense that scored, or would have scored, at an offense level 8 or higher.” See Elmer v. State, 732 So.2d 21 (Fla. 1st DCA 1999).' The upward departure sentence was consistent with this statute.

Appellant cites to Damiano v. State, 944 So.2d 516 (Fla. 4th DCA 2006), for the proposition that a prior conviction scored in a guidelines sentence cannot again be used as a reason to impose an upward departure. Damiano was decided based upon 1993 sentencing law, and section 921.0016(3)(r), Florida Statutes, became effective January 1, 1994. Therefore, Dami-ano is distinguishable from this case, where appellant’s offense was committed in 1995.

Affirmed.

MAY and DAMOORGIAN, JJ., concur.

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2 So. 3d 391, 2009 Fla. App. LEXIS 60, 2009 WL 30135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behrens-v-state-fladistctapp-2009.

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