Brintley v. State

Full title: FREEMAN BRINTLEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Second District

Date published: Apr 17, 1992

596 So. 2d 1270 (Fla. Dist. Ct. App. 1992)

Opinion

No. 92-00798.

April 17, 1992.

Appeal pursuant to Fla.R.App.P. 9.140(g) from the Circuit Court for Hillsborough County; Edward H. Ward, Judge.

PER CURIAM.

Affirmed.

DANAHY, A.C.J., and LEHAN, J., concur.

PATTERSON, J., concurs specially.

PATTERSON, Judge, concurring specially.

I concur because invalid guideline departure criteria cannot be attacked in a motion to correct a sentence if not raised on direct appeal. See Trimble v. State, 511 So.2d 403 (Fla. 2d DCA 1987). Relying on the habitual offender statute, the trial court departed from the guideline range of community control or twelve to thirty months in prison and sentenced the appellant to ten years in prison. At the time of the offense, however, the habitual offender statute was not a valid basis for departure. Whitehead v. State, 498 So.2d 863 (Fla. 1986). Based on the record before us, the appellant might obtain relief through a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of trial counsel or through a writ of habeas corpus claiming ineffective assistance of appellate counsel.