LEROY NORMAN MULLEN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mullen appeals his conviction for unlawful possession of cocaine with intent to sell or deliver. The court affirmed the conviction but reversed and remanded the sentence, finding that while the trial court properly departed from sentencing guidelines on some grounds, the extent of the departure (nine cells upward to fifteen years) was an abuse of discretion.
The court affirmed the conviction and found no error in departing from guidelines based on Mullen's status as a drug dealer, the method of drug transportation, the drug quantity, and his prior remote convictions. However, the court reversed because the extent of the departure—nine cells upward to the statutory maximum of fifteen years—was an abuse of discretion, exceeding the permissible fourth cell departure established in prior precedent.
[1] A defendant's status as a drug dealer, the method used to transport drugs, and the quantity of drugs involved are proper reasons for departing from sentencing guidelines.
[2] Prior drug convictions, even if too remote to be scored on a guidelines scoresheet, may serve as a basis for a departure sentence.
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“A defendant's status as a drug dealer can be used as the basis for departure if based upon facts revealed at trial.”
Establishes that defendant's role as a drug dealer is a proper ground for sentencing departure.
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Join FLexlaw to unlock all legal intelligenceMullen was arrested with 13.8 grams of 80% pure cocaine in a secret compartment of a vehicle. He had prior drug-related convictions that were too remo…
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UPCHURCH, Judge.
Mullen appeals from a conviction and sentence for unlawful possession of cocaine with intent to sell or deliver in violation of section 893.13(l)(a)(l), Florida Statutes (1983). As to the first two points raised on appeal, we conclude there was no harmful error because the evidence of guilt was overwhelming. The third point questions whether the court erred in departing from the sentencing guidelines. We find no error in the departure itself but reverse due to the extent of the departure.
The recommended sentence under the guidelines was “any non-state prison sanction” but the court departed nine cells upward and sentenced Mullen to fifteen years imprisonment. The court’s written reasons can be summarized as follows:
1) the defendant is a bona fide cocaine and drug dealer because there was a secret compartment in the vehicle used to transport cocaine and the substance found in this compartment was 13.8 grams of 80% pure cocaine;
2) the defendant has a history of drugs as evidenced by his prior convictions;
3) the defendant has been continually active for some time and supports his family by the sale of cocaine.
We find that no error exists as to the first reason for departure which focuses on Mullen’s status as a drug dealer, the method used to transport the drugs, and the amount of drugs involved. A defendant’s status as a drug dealer can be used as the basis for departure if based upon facts revealed at trial. Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984); Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984). The record before us supports the lower court’s determination that Mullen was dealing drugs at the time he was arrested. Additionally, the court properly considered the method of transportation since a sentencing court can consider the professional manner in which a crime is committed. Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985). The quantity of drugs involved in a crime has also been held to be a proper reason for departure even though it is an element of the convicted offense. Benitez v. State, 470 So. 2d 734 (Fla. 2d DCA 1985); Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984).
The second reason for departure considers Mullen’s prior convictions for drug possession which were too remote in time to be calculated in the scoresheet. Recent decisions by the Florida supreme court authorize trial judges to impose a departure sentence based on convictions not scored in the guidelines due to remoteness. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Weems v. State, 469 So. 2d 128 (Fla.1985). Mullen’s prior convictions could not be used in calculating his scoresheet but are a proper basis for enhancing his sentence.
The third reason for departure is that Mullen “has been continually active for some time and supports his family by the sale of this controlled substance”. We need not decide whether it is more reprehensible for a person to engage in criminal activity to support his family as opposed to engaging in the same conduct as a hobby, for entertainment, or for personal gain. We do find that this reason for departure is improper because it is not supported by the record. Ryder v. State, 464 So. 2d 1324 (Fla. 5th DCA 1985). This reason is not duplicative of the first reason for departure since it was based on evidence actually presented at trial, whereas here there was insufficient proof to establish that Mullen was a long term seller of drugs, he was unemployed for a long period of time, or he supported his family by this activity. It is clear beyond a reasonable doubt, however, that the trial judge would have departed in this case even without considering this factor. Albritton v. State, 476 So. 2d 158 (Fla.1985).
The final aspect of this case is the extent of the departure. The guidelines score was enhanced from any non-state prison sanction upwards nine cells to fifteen years, the maximum term provided by law. In a recent decision, Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985), which involved the same crime, initiated in the same county and resulted in a departure of the same magnitude, we held that a departure greater than the fourth cell was improper under Albritton. We likewise find that the court’s departure here was an abuse of discretion and remand for resentencing within the fourth cell.
Conviction AFFIRMED; Sentence REVERSED and cause REMANDED for re-sentencing.
COBB, C.J., and SHARP, J., concur.
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Citator
Cited By (17 total)
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Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986)…a) and b), which are essentially one reason — a large quantity of drugs — may constitute an appropriate reason for departure. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Benitez v. State, 470 So. 2d 734 (Fla. 2d DCA 1985); Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986). In State v. Villalovo, 481 So. 2d 1303 (Fla. 3d DCA 1986), the court allowed a downward departure from the recommended guidelines sentence based upon the small amount of contraband involved. We reject appellant’s argument that,…
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Hernandez v. State, 575 So. 2d 640 (Fla. 1991)…a valid reason for departure from the recommended guideline sentence.2 Some of these cases involved drug offenses of trafficking, possession, and conspiracy, while others were robbery, burglary, or grand theft cases. For example, in Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986), the Fifth District found that possession of cocaine with intent to sell or deliver was committed in a professional manner because a secret compartment had been installed in the vehicle used for transporting the cocaine. The Sec…1 / 2
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Stanley v. State, 507 So. 2d 1131 (Fla. 5th DCA 1987)…117 (Fla.1985); Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985), review denied, 488 So. 2d 830 (Fla.1986); Pastor [*1133] v. State, 498 So. 2d 962 (Fla. 4th DCA 1986); Birchfield v. State, 497 So. 2d 944, 945 (Fla. 1st DCA 1986); Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986); Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984), review denied, 464 So. 2d 556 (Fla.1985), disapproved on other grounds, State v. Whitfield, 487 So. 2d 1045 (Fla.1986); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Sea…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)
- Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984)
- Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985)
- Ryder v. State, 464 So. 2d 1324 (Fla. 5th DCA 1985)