RICHARD R. SCHMITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a conviction for importation cannot stand if not differentiated from trafficking, and a defendant cannot be denied sentencing under the guidelines absent a valid waiver.
[1] A conviction for importation cannot stand if the evidence and jury instructions do not differentiate it from the act constituting trafficking.
[2] A defendant who elects to be sentenced under the sentencing guidelines after October 1, 1983, must be sentenced in accordance with those guidelines, absent statutory exce…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of conspiracy to traffic, trafficking, and importation of marijuana. The trial court declined to sentence him under the senten…
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COBB, Chief Judge.
The appellant, Richard R. Schmitt, together with four others, was convicted of conspiracy to traffic in marijuana, trafficking, and importation. The evidence and jury instructions herein reveal no differentiation between the act constituting the importation and any separate acts constituting the trafficking, hence the importation conviction cannot stand. Bell v. State, 437 So. 2d 1057 (Fla.1983). The remaining appellate issues relating to the convictions for trafficking and conspiracy are without merit.
The appellant also urges that the trial court erred in declining to sentence him under the sentencing guidelines. Section 921.001(4)(a), Florida Statutes (1983), requires that a defendant sentenced after October 1,1983, be sentenced in accordance with the guidelines, if he so elects. There are no exceptions to this requirement except those provided by law. See Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984).
The trial court explicitly found that it would not be sentencing under the guidelines, apparently for the reason that the defendant did not meet its requirement that the parties file a sentencing report ten days prior to sentencing, although the order for this requirement was received by counsel for the appellant only six days pri-or to sentencing. This cannot constitute a valid waiver of the sentencing guidelines. Florida Rule of Criminal Procedure 3.701 and section 921.001(4)(a), Florida Statutes, not to mention fundamental due process, do not permit the trial judge to place a limitation on a defendant’s right to exercise his prerogative to be sentenced under the sentencing guidelines, as was done in this case.
The appellant’s conviction for importation is reversed; his convictions for conspiracy and trafficking are affirmed. The sentences for the latter two offenses are reversed, and the cause remanded for re-sentencing pursuant to the sentencing guidelines.
REVERSED in part; AFFIRMED in part; and REMANDED for resentencing.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ„ concur.
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Crowder v. State, 735 So. 2d 563 (Fla. 3d DCA 1999)…4). Accordingly, the court erred in failing to afford defendant this option. Baker v. State, 659 So. 2d 713 (Fla. 4th DCA 1995); Nealy v. State, 518 So. 2d 985 (Fla. 1st DCA 1988); Sias v. State, 464 So. 2d 1276 (Fla. 3d DCA 1985); Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984). Upon resentencing, defendant shall be permitted to elect a guidelines sentence. However, as noted in State v. Pentaude, 500 So. 2d 526, 528 (Fla.1987), this rule does not completely limit the trial court’s discretion in sentenci…
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McLEOD v. State, 523 So. 2d 603 (Fla. 1st DCA 1987)…icated under sentencing guidelines); Sias v. State, 464 So. 2d 1276 (Fla. 3d DCA 1985) (because appellant’s highest convictions were for first degree felonies, he is entitled to a guideline sentence upon his affirmative selection); Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984) (there are no exceptions to the requirement that a defendant be sentenced in accordance with the guidelines, if he so elects, except for those exceptions provided by law). Under the circumstances, we find that the trial court’s…
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Bailie v. State, 498 So. 2d 602 (Fla. 2d DCA 1986)…date when the defendant affirmatively selects to be sentenced....” Here, the trial court erred because its ruling deprived the defendant of the opportunity to elect sentencing in accordance with the guidelines. See § 921.001(4)(a); Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984). The trial court also erred by imposing costs pursuant to section 27.3455, which became effective July .1, 1985. This court held in Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986), that section 27.3455 does not apply retroac…
Authorities Cited
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984)