MELODY LYNN KOSSOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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CAMPBELL, Acting Chief Judge.
Appellant, Melody Lynn Kossow, appeals her conviction for possession of diazepam. We affirm her conviction as we find there was substantial credible evidence upon which the jury could base its decision to convict for the offense of possession of diazepam.
Appellant also contends that the trial court erred in departing from the sentencing guidelines on the grounds that appellant perjured herself when she testified at her trial, showed no remorse and gave no assistance to law enforcement officers. We agree that the court erred on those grounds. None of the three cited reasons by the trial judge justify departing from the sentencing guidelines. Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985); Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984); Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA Feb. 27, 1985).
We, therefore, affirm appellant’s conviction, but we remand to the trial court with directions to resentence appellant within the presumptive guideline range indicated by the scoresheet previously prepared for sentencing purposes.
FRANK and HALL, JJ., concur.
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Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985)…is occasion and when he continued to main [*1363] tain his innocence, despite the jury verdict to the contrary, he incurred the judge’s wrath. These are neither proper nor clear and convincing reasons to impose a departure sentence. Kossow v. State, 468 So. 2d 1104 (Fla.2d DCA 1985); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). At the sentencing hearing the trial court also said in the written tra…
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Alphonse McBRIDE v. State, 477 So. 2d 1091 (Fla. 4th DCA 1985)…5); Bowdoin v. State, 464 So. 2d 596 (Fla. 4th DCA 1985); Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984). The trial judge’s belief that the defendant lied in his defense at trial is also not an accepted ground for deviation. Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985). Further, we held in Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1985), that the possibility of defendant’s committing further crimes does not constitute a valid ground for departing from the guidelines. See also Lindsey v. State,…
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Bienvenido Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA 1986)…sons for departure, that appellant perjured himself and did not cooperate with law enforcement, were clearly impermissible. Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985); Hearn v. State, 470 So. 2d 826, 827 (Fla. 2d DCA 1985); Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985). In conclusion, appellant’s departure sentence was grounded upon one permissible reason and three impermissible reasons. The state has not shown beyond a reasonable doubt that the absence of impermissible reasons would not have…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)