WALTER GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court affirmed the conviction for attempted trafficking but reversed the conviction for possession with intent to sell. This reversal impacted the sentencing guidelines, requiring a remand for resentencing.
The court held that the conviction for possession with intent to sell was an additional offense under the guidelines, warranting reversal. The court did not rule on the parole eligibility issue, as it was not necessary for the disposition of the case.
[1] A conviction for attempted trafficking in cannabis does not preclude a separate conviction for possession with intent to sell the same cannabis.
[2] Reversal of a conviction for possession with intent to sell eliminates the additional offense at conviction for sentencing guideline purposes.
Previewing 2 of 4 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“Our reversal of the possession with intent to sell charge thus eliminates the “additional offense at conviction,” see Fla.R.Crim.P. 3.701 d.4, and the concomitant 27 points which were added to the defendant’s sentencing guideline scoresheet, see Fla.R.Crim.P. 3.988(g).”
Explains the impact of reversing one of the convictions on the sentencing guidelines.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of both attempted trafficking in cannabis and possession with intent to sell the same cannabis. The conviction for possess…
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DANIEL S. PEARSON, Judge.
We affirm the defendant’s conviction for attempted trafficking in cannabis and reverse his conviction for possession with intent to sell the very same cannabis. See Bell v. State, 437 So. 2d 1057 (Fla.1983); Muwwakil v. State, 435 So. 2d 304 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 417 (Fla.1984). Our reversal of the possession with intent to sell charge thus eliminates the “additional offense at conviction,” see Fla.R.Crim.P. 3.701 d.4, and the concomitant 27 points which were added to the defendant’s sentencing guideline scoresheet, see Fla.R.Crim.P. 3.988(g). The elimination of these 27 points reduces the defendant’s point score from 164 to 137 and the recommended sentence from a range of five and one-half to seven years to a range of three and one-half to four and one-half years. Accordingly, because the defendant was sentenced to a term of seven years imprisonment, the cause must be remanded for resentencing.
Because we remand for sentencing, we need not decide the further point posed by the appellant — namely, whether he, as a person whose crime occurred before October 1, 1983, and who is therefore given the right to elect to be sentenced under the guidelines, must on the record affirmatively waive his right to parole eligibility before his election of guideline sentencing will be deemed free and voluntary. While there is authority that such an affirmative waiver is unnecessary, see, e.g., Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985); Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984); Cochran v. State, 460 So. 2d 542 (Fla. 1st DCA 1984); Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984); Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984), nonetheless, the question has been certified to the Florida Supreme Court as one of great public importance, and until the question is finally resolved, the trial court would be well advised to obtain the defendant’s waiver of his right to parole eligibility preceding any resentencing under the guidelines.
Affirmed in part; reversed in part; remanded for resentencing.
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Sobrino v. State, 471 So. 2d 1333 (Fla. 3d DCA 1985)…were in actual or constructive possession of the drugs. Of course, they could have been charged with attempted trafficking by attempted possession in violation of section 893.-135(l)(a) and 777.04(1), Florida Statutes (1983). See Gonzalez v. State, 465 So. 2d 613 (Fla. 3d DCA 1985); State v. Wise, 464 So. 2d 1245 (Fla. 1st DCA 1985). . The definition of delivery contained in section 893.02(4), Florida Statutes (1983) is as follows: (4) "Deliver” or "delivery" means the actual, constructive, or attempted tr…
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Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986)…ly show a knowing and intelligent waiver of parole eligibility. Despite this holding, the court observed, in a footnote, that “[s]uch a showing ... would be beneficial for appeals on post-conviction collateral attacks.” See also: Gonzalez v. State, 465 So. 2d 613 (Fla. 3rd DCA 1985). The record in the instant case indicates that the trial court and trial counsel considered the matter of Stewart’s affirmative selection of guideline sentencing to be an open question at the time of the probation revocation hea…
Authorities Cited
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984)
- Kunta Muwwakil v. State, 435 So. 2d 304 (Fla. 3d DCA 1983)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984)
- Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985)
- Cochran v. State, 460 So. 2d 542 (Fla. 1st DCA 1984)