PAULA ANN ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paula Ann Allen was convicted of trafficking in cocaine and sentenced to seven years imprisonment. She appealed, arguing the trial court improperly departed from sentencing guidelines by imposing a sentence above the mandatory minimum of five years without valid reasons.
The trial court's departure was improper. Only reasons 1, 2, and 5 were claimed by the state to be invalid; the court found all five reasons insufficient. The sentence should be reduced to the mandatory minimum of five years.
[1] A mandatory minimum sentence controls over the presumptive sentencing range established by guidelines.
[2] Reasons for deviating from sentencing guidelines shall not include factors relating to offenses for which convictions have not been obtained.
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Join FLexlaw to unlock all legal intelligence“[r]easons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.”
Establishes the key rule preventing courts from considering unconvicted offenses as reasons for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceAllen was convicted of trafficking in cocaine. The sentencing guidelines presumptive range was 3.5 to 4.5 years, but a mandatory minimum of five years…
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LEHAN, Judge.
Defendant was convicted of trafficking in cocaine. She appeals from her sentence of seven years incarceration, contending that the trial court improperly departed from the sentencing guidelines.
The guidelines presumptive sentencing range under defendant’s scoresheet called for three and one-half to four and one-half years incarceration. The applicable mandatory minimum incarceration un der section 893.135(1)(b)(2), Florida Statutes (1983), is five years. That mandatory minimum controls over the guidelines presumptive sentencing range. Rule 3.701(d)(9), Florida Rule of Criminal Procedure. Therefore, defendant’s sentence should have been five years unless there were valid reasons for the trial court to further depart from the presumptive sentencing range.
The trial court listed five reasons for departure as follows:
1. The offense for which the defendant was sentenced was obviously part of a larger-scale-organized scheme of criminal conspiracy, to-wit: supplying cocaine to smaller dealers in Haines City — Davenport area of Polk County.
2. At the trial of this matter, one of the witnesses was called at home and told his life would be in danger if he testified against the defendant.
3. The defendant shows little or no remorse for the crime for which she was sentenced.
4. The affidavit in this cause shows that the defendant was carrying, under the front seat of her auto, a loaded .357 Magnum revolver at the time of the commission of this crime.
5. Imposition of the minimum mandatory sentence of 5 years would depreciate the seriousness of this cause.
The state concedes that reasons number 3 and 4 are insufficient. We agree. See Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984), and Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984), quashed on other grounds, 475 So. 2d 1218 (Fla.1985).
We agree with defendant that reasons number 1, 2 and 5 were also insufficient. As to number 1, “[r]easons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.” Florida Rule of Criminal Procedure 3.701(d)(11). “[T]he court is prohibited from considering offenses for which the offender has not been convicted....” Hendrix, supra at 450. See also Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985). Defendant was not convicted of the offense of conspiracy. As to reason number 2, there was no showing that defendant was responsible for threatening a witness, and, even if there was, as we have said, a valid reason for departure cannot include an offense for which defendant was not convicted. See Trainor; Hendrix. As to reason number 5, the trial court’s conclusion that five years incarceration is not enough simply seems to reflect disagreement with the guidelines, as modified by the foregoing mandatory minimum sentencing statute.
We therefore reverse and remand for sentencing to the mandatory minimum as provided in section 893.135(l)(b)(2).
DANAHY, A.C.J., and SCHOONOVER, J., concur.
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Nivaldo Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986)…ocaine laboratory, an offense expressly negated by the jury’s verdict. See Crofton v. State, 491 So. 2d 317 (Fla. 1st DCA 1986); Dixon v. State, 492 So. 2d 410 (Fla. 5th DCA 1986); Baxter v. State, 488 So. 2d 647 (Fla. 5th DCA 1986); Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985). For the same reasons, the trial court’s implicit finding of extreme risk of harm to others is improper. Furthermore, the trial court neglected to enter a written order justifying its departure from the sentencing guidelines; not…
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Quilla Elkins v. State, 489 So. 2d 1222 (Fla. 5th DCA 1986)…. Reasons for departing from the presumptive guidelines range cannot include factors relating to an offense for which a conviction has not been obtained. Fla.R.Crim.P. 3.701(d)(ll); Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986); Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985). Because both of these reasons for departing are insufficient as a matter of case law in interpreting the guidelines sentencing statute, I do not think that the failure of the trial judge to articulate them at the sentencing hear…
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Hernandez v. State, 501 So. 2d 163 (Fla. 3d DCA 1987)…court correctly recognized that the five-year mandatory minimum sentence prescribed by section 893.135, Florida Statutes (1983), takes precedence over the recommended guidelines sentence. Vanover v. State, 498 So. 2d 899 (Fla.1986); Allen v. State, 479 So. 2d 257 (Fla. 2d DCA 1985); Fla.R. Crim.P. 3.701(d)9; see also Pedraza v. State, 493 So. 2d 1122 (Fla. 3d DCA 1986). Here, however, the trial court’s sentence exceeded both the guidelines and mandatory minimum sentence. We therefore grant the petition, vaca…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)