Graham v. State

District Court of Appeal of Florida

Graham v. State

865 So. 2d 636, 2004 Fla. App. LEXIS 1309, 2004 WL 241404

CourtDistrict Court of Appeal of Florida

DecidedFebruary 11, 2004

DocketNo. 2D03-3009

StatusPublished

This text of 865 So. 2d 636 (Graham 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

Graham v. State, 865 So. 2d 636, 2004 Fla. App. LEXIS 1309, 2004 WL 241404 (Fla. Ct. App. 2004).

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Opinion

FULMER, Judge.

Johnnie Mack Graham, Jr., has filed a petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(c). Graham raises two issues, only one of which has merit, and upon which we grant relief.

On June 26, 2000, Graham was convicted of a second-degree murder committed on August 16, 1998. His sentence points totaled 361.8 and the maximum recommended sentence under the guidelines was 417.2 months. The trial court, without stating reasons for departure, sentenced Graham to life in prison. Section 921.001(6), Florida Statutes (1997), provides that “[departures from the recommended sentences established in the guidelines are articulated in writing.” A court may impose a life sentence without written explanation if the total sentence points are 363 or greater, § 921.0014(2); however, Graham’s sentencing points totaled 361.8. The State agrees that, had appellate counsel raised this issue on direct appeal, Graham would have been entitled to resentencing within the guidelines.

The record is clear, and the State concedes, that Graham is entitled to resen-tencing. Accordingly, this petition is granted. We reverse the sentence and remand for the trial court to resentence Graham pursuant to the sentencing guidelines.

Petition granted, sentence reversed, remanded for resentencing.

SILBERMAN and WALLACE, JJ., Concur.

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FULMER, Judge.

Johnnie Mack Graham, Jr., has filed a petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(c). Graham raises two issues, only one of which has merit, and upon which we grant relief.

On June 26, 2000, Graham was convicted of a second-degree murder committed on August 16, 1998. His sentence points totaled 361.8 and the maximum recommended sentence under the guidelines was 417.2 months. The trial court, without stating reasons for departure, sentenced Graham to life in prison. Section 921.001(6), Florida Statutes (1997), provides that “[departures from the recommended sentences established in the guidelines are articulated in writing.” A court may impose a life sentence without written explanation if the total sentence points are 363 or greater, § 921.0014(2); however, Graham’s sentencing points totaled 361.8. The State agrees that, had appellate counsel raised this issue on direct appeal, Graham would have been entitled to resentencing within the guidelines.

The record is clear, and the State concedes, that Graham is entitled to resen-tencing. Accordingly, this petition is granted. We reverse the sentence and remand for the trial court to resentence Graham pursuant to the sentencing guidelines.

Petition granted, sentence reversed, remanded for resentencing.

SILBERMAN and WALLACE, JJ., Concur.

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Bluebook (online)

865 So. 2d 636, 2004 Fla. App. LEXIS 1309, 2004 WL 241404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-state-fladistctapp-2004.