HENRY LEE LINDSEY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Lee Lindsey appeals his conviction on three counts of selling phenobarbital and one count of selling a substance in lieu of a controlled substance. The Second District affirmed his convictions but reversed his sentence, finding that the trial judge improperly departed from sentencing guidelines based on speculative reasoning and used the wrong sentencing scoresheet category.
1) Section 817.563 is constitutional and not vague; 2) Sufficient circumstantial evidence supported the conviction; 3) While the judge could consider that Lindsey was a drug dealer, speculation about potential future convictions does not provide clear and convincing reasons to depart from guidelines; and 4) Because the fraud conviction is in a lower numerical category than the drug convictions, the judge should have used the Category VI (fraud) scoresheet rather than Category VII (drugs).
[1] A statute prohibiting the sale of a substance in lieu of a controlled substance is constitutional.
[2] Sufficient circumstantial evidence can support a jury's guilty verdict.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under rule 3.701(d)(ll), a trial judge is allowed to depart from the range set forth in the rules only where there are "clear and convincing reasons to warrant aggravating or mitigating the sentence."”
Establishes the legal standard for departure from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceLindsey was convicted of three counts of selling phenobarbital and one count of selling a substance in lieu of a controlled substance. The convictions…
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RYDER, Chief Judge.
Lindsey appeals the judgment and sentence on three counts for the sale of pheno barbital, section 893.13(l)(a)(2), Florida Statutes (1981), and one count for the sale of substance in lieu of a controlled substance, section 817.563, Florida Statutes (1981).
The appellant has attacked section 817.-563 as being unconstitutionally vague as a fraud statute and an improper exercise of police power. He argues that in State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984), the Fourth District ruled that section 817.-563 is unconstitutional, and that this court should follow suit.
In M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983), this court considered this same issue and held that section 817.563 was constitutional. See also Houser v. State, 453 So. 2d 484 (Fla. 2d DCA 1984); State v. Growden, 437 So. 2d 783 (Fla. 2d DCA 1983); State v. King, 435 So. 2d 370 (Fla. 2d DCA 1983); and State v. Thomas, 428 So. 2d 327 (Fla. 1st DCA 1983). Despite the view of our sister court in Bussey, we adhere to our holding in M.P. and reaffirm the constitutionality of the statute.
As to the second point on appeal, we hold that there was sufficient circumstantial evidence upon which the jury could find Lindsey guilty. Therefore, the trial judge did not err in denying Lindsey’s motion for judgment of acquittal.
The two final points on appeal deal with the appellant’s sentencing pursuant to Florida Rules of Criminal Procedure 3.701 and 3.988. We find merit in Lindsey’s arguments in regard to both the trial judge’s departure from the guidelines and the use of the scoresheet.
Under rule 3.701(d)(ll), a trial judge is allowed to depart from the range set forth in the rules only where there are “clear and convincing reasons to warrant aggravating or mitigating the sentence.” (Emphasis added).
In this case, the trial judge departed from the guidelines and imposed an aggravated sentence’ on the appellant. During the sentencing proceeding, the judge stated that facts which came out during the trial showed that the appellant was a drug dealer. The trial judge explained that, although the four counts upon which the appellant was convicted were taken into consideration within the sentencing guideline point system, the appellant could have been convicted of ten or twenty counts if the undercover police officers had continued to buy drugs from him rather than stopping after four transactions.
We hold that the judge could properly take into consideration the fact that the appellant was a drug dealer based upon facts which were revealed during trial.
However, the judge’s reasoning that the appellant “could have” been convicted of ten or twenty counts is speculative. Speculation as to what the appellant might have done in the future is not a clear and convincing reason for departure from the guidelines, and therefore, although we affirm the judgment of guilt, we reverse and set aside the sentence imposed and remand for resentencing.
The appellant also contends that the trial judge incorrectly used the sentencing scoresheet from Category VII (drugs), rule 3.988(g), whereas he should have used the scoresheet from Category VI (theft, forgery, fraud), rule 3.988(f). The appellant was convicted on three counts under a drug statute, and one count under a fraud statute. All four counts are third degree felonies. According to the then rule 3.701(d)(3)(b), which was in effect at the time of sentencing, if there are two or more offenses of the same degree the primary offense is determined by “the lowest numerical offense category.” In this case, the third degree fraud conviction is within a lower numerical offense category than the three third degree drug convictions.
Therefore, upon remand for resentencing, the judge should use the scoresheet from Category VI to calculate the sentence.
The judgment of guilt is AFFIRMED; the sentence is REVERSED and set aside and the matter is REMANDED for resentencing in accordance with instructions.
HOBSON and BOARDMAN, JJ., concur.
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Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)…because she fought like a tigress. Nonetheless, no sexual battery or murder was ever committed. Our sister court has held the possibility of further crime does not support aggravation and we agree for the reasons set forth therein. Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984). In Mischler we discussed the third basis for aggravation, that is, great physical distress and emotional trauma and we approve it here. See Williams v. State, 454 So. 2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So. 2d 586 (F…
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…984); Boyett v. State, 452 So. 2d 958 (Fla. 2d DCA 1984). Convictions in other states can support departure Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984). Speculation about possible further crimes not clear and convincing Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984); Davis v. State, 458 So. 2d 42 (Fla. 4th DCA) issued simultaneously herewith. Violation of probation is sufficient to allow departure Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So. 2d 129 (Fla. 5t…
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Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986)…asserts that he was denied the benefit of an accurate scoresheet setting forth his recommended sentence because the capital felony was improperly scored as a life felony, citing Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984), and Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984). The State concedes that the recommended sentence was improperly calculated, that the capital felony should not have been scored, and that the primary offense should have been the second degree felony (lewd and lascivious assault…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- M.P. v. State, 430 So. 2d 523 (Fla. 2d DCA 1983)
- State v. Bussey, 444 So. 2d 63 (Fla. 4th DCA 1984)
- Sherman v. E.V. Smith Co. & Fla. Farm Bureau, 428 So. 2d 327 (Fla. 1st DCA 1983)
- State v. Harry V. Thomas/Hubert D. Williams, 428 So. 2d 327 (Fla. 1st DCA 1983)
- Agramonte v. Aviles, 435 So. 2d 370 (Fla. 4th DCA 1983)
- State v. Growden, 437 So. 2d 783 (Fla. 2d DCA 1983)
- Houser v. State, 453 So. 2d 484 (Fla. 2d DCA 1984)