HARRY JAMES PURSELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harry James Pursell appeals his conviction for conspiracy to traffic in cocaine. The appellate court affirmed the conviction but reversed the sentence of thirty years, finding that the trial court relied on improper factors in departing from the mandatory minimum fifteen-year sentence.
The conviction is affirmed, but the sentence is reversed and remanded for resentencing. The trial court's reliance on Pursell's false testimony and alleged involvement in a large-scale smuggling operation (based on uncorroborated hearsay) as grounds for departure from the mandatory minimum were improper, even though the large quantity of cocaine was a valid reason for departure.
[1] A trial court may depart from recommended sentencing guidelines when the quantity of drugs involved in the offense far exceeds the statutory threshold.
[2] A defendant's perjury during testimony is an impermissible reason for a trial court to depart from sentencing guidelines.
Previewing 2 of 5 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“the court's second reason, that appellant lied during his testimony, is an improper reason for departure”
Establishes that perjury by a defendant is not a valid sentencing guideline departure factor
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Join FLexlaw to unlock all legal intelligencePursell was convicted of conspiracy to traffic in over 400 grams of cocaine. The actual amount of cocaine involved was 1,952.5 grams. The trial court …
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RYDER, Chief Judge.
Harry James Pursell appeals the judgment and sentence for his conviction of conspiracy to traffic in over 400 grams of cocaine. We affirm his conviction but reverse and remand for resentencing.
Under the guidelines, appellant’s recommended sentence was three and one-half to four and one-half years. However, appellant’s conviction under section 893.-135(l)(b)(3), Florida Statutes (1983), re-, quired the court to impose the minimum mandatory sentence of fifteen years. See Lightfoot v. State, 459 So. 2d 1157, 1159 (Fla. 2d DCA 1984). The trial court imposed a sentence of thirty years imprisonment. The court’s written reasons for departure from the minimum mandatory sentence required under the guidelines were that the quantity of drugs far exceeded 400 grams; that appellant deliberately and blatantly lied during his testimony; and that appellant was part of a large scale, sophisticated drug smuggling operation.
In this case, the amount of cocaine involved in the conspiracy was 1,952.5 grams. We have previously held that the quantity of drugs involved in an offense is a valid reason for departure. Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985).
The court’s second reason, that appellant lied during his testimony, is an improper reason for departure. Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985).
The court found that appellant was part of a large scale, sophisticated drug smuggling operation. The only evidence to suggest this finding is a tape recorded telephone conversation between appellant’s codefendant and an undercover police officer in which the codefendant had stated that “his man” had previously purchased ten kilos of cocaine from a different source, and was a “major distributor up there.” Such hearsay allegations are insufficient to support the court’s conclusion, and do not provide a valid reason for departure. Even if the hearsay statements were proven true, appellant was neither charged nor convicted of any prior trafficking charge in Florida or in his home state of Alaska. It was improper to depart from the guidelines on the basis of alleged crimes for which the appellant has not been either arrested or convicted. Trainor v. State, 468 So. 2d 484, 486 (Fla. 2d DCA 1985). In this case, the implication that appellant was a major drug smuggler can arise only from the large quantity of cocaine he had conspired to purchase, and the court has already used the quantity involved as a reason for departure.
The state has not shown beyond a reasonable doubt that the absence of impermissible reasons would not have affected the departure sentence, therefore, we reverse and remand for resentencing. Carter v. State, 478 So. 2d 1071 (Fla.1985).
Reversed and remanded with instructions.
GRIMES and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Atwaters v. State, 519 So. 2d 611 (Fla. 1988)…GRIMES, Justice, specially ccncurring. In the past I have participated in decisions which held that the quantity of drugs involved was a valid reason for guidelines departure. See Pursell v. State, 483 So. 2d 94 (Fla.2d DCA 1986); Jean v. State, 466 So. 2d 1083 (Fla.2d DCA 1984). However, I concur with the result in the instant case because it is consistent with recent Supreme Court decisions which have narrowly circumscribed the reasons which may be relied…
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Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)…2d DCA 1986) (43.5 grams). However, other cases have permitted departure from the recommended range where the amount of drugs far exceeded that necessary for conviction. Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA) (965.4 grams); Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986) (1,952.5 grams). The amount of cocaine involved here did not far enough exceed the 28 grams necessary for conviction under Section 893.135, Florida Statutes (1984) to justify departure. Two cases concerning drugs other than cocai…
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…arter v. State, 485 So. 2d 1292 (Fla. 4th DCA), rev. den., 494 So. 2d 1149 (Fla.1986), and that these reasons constituted various crimes of which he was not convicted, citing Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985), and Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986). He asserts that, according to the scoresheet, there were neither additional offenses at conviction nor a prior record. Appellant admits that his counsel stated at the sentencing hearing that he had entered a plea and had been sen…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trainor v. State, 468 So. 2d 484 (Fla. 2d DCA 1985)
- Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985)
- Lightfoot v. State, 459 So. 2d 1157 (Fla. 2d DCA 1984)
- von Carter v. State, 478 So. 2d 1071 (Fla. 1985)
- Serge v. Dreher, 474 So. 2d 846 (Fla. 4th DCA 1985)
- Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985)