Opinion
Case No. 2D03-3009.
Opinion filed February 11, 2004.
Petition Alleging Ineffective Assistance of Appellate Counsel, Lee County, Thomas S. Reese, Judge.
Johnnie Mack Graham, Jr., pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Respondent.
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 "[d]epartures 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 resentencing. 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.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED