STATE OF FLORIDA, APPELLANT,
v.
ROBERT MAURICE ROW, APPELLEE
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The State appealed a cocaine trafficking sentence as illegal. The trial court imposed a three-year mandatory minimum with six months in jail and two-and-a-half years on community control, but the appellate court held that community control cannot substitute for the mandatory imprisonment requirement and that the guideline sentence should have been imposed unless valid departure reasons were stated.
The sentence was illegal for two reasons: (1) the statute explicitly mandates imprisonment of three calendar years, and the trial court lacked authority to substitute community control for imprisonment; (2) under Florida Rule of Criminal Procedure 3.701(d)(9), the five-year guideline recommended sentence should have been imposed unless valid reasons for departure were stated in the record.
[1] A trial court lacks the authority to substitute community control for mandatory imprisonment when sentencing a defendant convicted of trafficking in cocaine under section…
[2] When a guideline sentence exceeds a mandatory sentence, the guideline sentence should be imposed unless a valid reason for departure is stated.
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Join FLexlaw to unlock all legal intelligence“section 893.135(l)(b)l explicitly states that defendants convicted under this section "shall be sentenced to a mandatory minimum term of imprisonment of three calendar years."”
Establishes that the statute mandates imprisonment, not merely a minimum sentence that can be served through community control
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Join FLexlaw to unlock all legal intelligenceRobert Maurice Row was convicted of trafficking in cocaine under Florida Statute § 893.135(l)(b)1. The trial judge sentenced him to three years, with …
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COBB, Chief Judge.
The state appeals from the sentence imposed on the defendant, Robert Maurice Row, claiming that it was an illegal sentence.1 We agree and vacate the sentence.
Defendant was convicted of trafficking in cocaine, in violation of section 893.-135(l)(b)l, Florida Statutes (1983). Without stating his reasons therefor, the trial judge indicated at sentencing that he was willing to depart from the guideline recommended sentence of five years downwards to the three-year mandatory minimum prescribed by section 893.135(l)(b)l. In pronouncing sentence, the judge stated:
In this case, I have a minimum requirement to sentence you to three years, and I am going to sentence you to three years. I am going to condition that to be six months served in the Orange County Jail and two-and-a-half years will be on community control in lieu of two-and-a-half years of Department of Corrections incarceration.2
The trial court’s sentence was unauthorized for two reasons. First, section 893.135(l)(b)l explicitly states that defendants convicted under this section “shall be sentenced to a mandatory minimum term of imprisonment of three calendar years.” (Emphasis supplied.) The trial court was thus without authority to substitute community control ’for imprisonment. Cf Gottlieb v. State, 462 So. 2d 101 (Fla. 4th DCA 1985). Second, Florida Rule of Criminal Procedure 3.701(d)(9) provides that “If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.” Therefore, the five-year guideline recommended sentence should have been imposed in this case, unless a valid reason for departure had been given. We note also that the record does not reflect that the mandatory $50,000.00 fine required under section 893.135(l)(b)l was imposed in this case. ’
The sentence in this case is vacated and the cause remanded to the trial court for resentencing, with instructions to impose the guideline recommended sentence of incarceration unless a valid reason for departure is stated, and to impose the mandatory minimum fine.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
UPCHURCH, J., and VANN, H.R., Associate Judge, concur. . See Fla.R.App.P. 9.140(c)(l)(I).
. The trial court subsequently modified the incarceration portion of defendant’s sentence to work release.
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Elliott Vargas v. State, 188 So. 3d 915 (Fla. 5th DCA 2016)…State, 746 So. 2d 1182, 1186-87 (Fla. 4th DCA 1999)). Where the judge has no discretion in imposing a mandatory minimum sentence, the failure to do so makes the sentence illegal. See State v. Fulton, 878 So. 2d 485 (Fla. 1st DCA 2004); State v. Row, 478 So. 2d 430 (Fla. 5th DCA 1985). Here, the sentencing court erred in failing to impose any mandatory minimum sentences on counts 1 through 5, and the State properly concedes that the defendant is entitled to be re-sentenced on those counts. As for the defenda…
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Morris v. State, 493 So. 2d 19 (Fla. 5th DCA 1986)…use of parole. See § 947.16, Fla.Stat. (1985).3 We also [*21] know that even under the guidelines the mandatory minimum sentence must be imposed if the recommended sentence is less than the mandatory sentence. Fla.R. Crim.P. 3.701 d.9; State v. Row, 478 So. 2d 430 (Fla. 5th DCA 1985). If, because of parole, a defendant would not be expected to serve more time under a non-guidelines sentence than he would serve under a guidelines sentence without parole, the defendant has not been prejudiced. This case is dis…
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State v. Young, 579 So. 2d 380 (Fla. 5th DCA 1991)…CE VACATED; CAUSE REMANDED. DAUKSCH and COBB, JJ., concur. . See Caulder v. State, 500 So. 2d 1362, 1366 (Fla. 5th DCA 1986), rev. denied, 511 So. 2d 297 (Fla.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988); State v. Row, 478 So. 2d 430 (Fla. 5th DCA 1985); State v. Samudio, 460 So. 2d 419 (Fla. 2d DCA 1984).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gottlieb v. State, 462 So. 2d 101 (Fla. 4th DCA 1985)