BIENVENIDO GUERRERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a departure sentence based on impermissible reasons must be reversed and remanded for resentencing.
[1] The quantity of drugs involved in an offense is a proper reason for departure from sentencing guidelines.
[2] The amount of money involved in the crime of delivery of cocaine is not a valid reason for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of drug trafficking and possession. The trial court departed from sentencing guidelines, imposing a longer sentence based on d…
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RYDER, Chief Judge.
Bienvenido Guerrero appeals the judgments and sentences for his convictions of trafficking in over 400 grams of cocaine and possession of controlled substance paraphernalia. We affirm his convictions, but reverse and remand for resentencing.
Under the guidelines, the recommended sentence was four and one-half to five and one-half years. Appellant’s conviction under section 893.135(1)(b)3, Florida Statutes (1983), required the court to impose a mandatory minimum sentence of fifteen years. The court departed from the guidelines and imposed a thirty-year sentence on the trafficking conviction and ordered appellant to pay a $250,000.00 fine. The court’s written reasons for departure were that it was a major narcotics trafficking transaction involving 965.4 grams of cocaine with a street value of $500,000.00; that the appellant perjured himself when he testified in his own behalf at trial; and that the appellant had not cooperated with law enforcement.
This court has held that the quantity of drugs involved in an offense is a proper reason for departure. Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985). However, this court has also held that the amount of money involved in the crime of delivery of cocaine is not a valid reason for departure. Dawkins v. State, 479 So. 2d 818 (Fla. 2d DCA 1985). Therefore, a portion of the court’s first reason was an invalid reason for departure.
The court’s other two reasons 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 affected the departure sentence, therefore, we must reverse and remand for resentencing. Von Carter v. State, 478 So. 2d 1071 (Fla.1985).
SCHEB and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)…2, 1986) (28.35 grams); Gallo v. State, 483 So. 2d 876 (Fla. 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 ju…
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Avery Corbitt v. State, 220 So. 3d 446 (Fla. 5th DCA 2016)…hich have disapproved the trial court’s reliance upon the defendant’s apparent untruthfulness at trial or lack of remorse. See Perez v. State, 485 So. 2d 24 (Fla. 1st DCA 1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984); Guerrero v. State, 484 So. 2d 59 (Fla. 2nd DCA 1986); and Pursell v. State, 483 So. 2d 94 (Fla. 2nd DCA 1986). In Hubler, the defendant pled not guilty, went to trial, and presented certain alibi witnesses. The jury found him guilty. In departing from the .guidelines sentence, the…
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Everage v. State, 504 So. 2d 1255 (Fla. 1st DCA 1986)…where the basis is the defendant’s apparent untruthfulness during trial. Perez v. State, 485 So. 2d 24 (Fla. 1st DCA 1986); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985); Gallo v. State, 483 So. 2d 876 (Fla. 2nd DCA 1986); Guerrero v. State, 484 So. 2d 59 (Fla. 2nd DCA 1986); and Pursell v. State, 483 So. 2d 94 (Fla. 2nd DCA 1986). The trial court’s reliance upon United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), is misplaced. See Daytona Beach v. Del Percio, 476 So. 2d 197…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985)
- von Carter v. State, 478 So. 2d 1071 (Fla. 1985)
- Kossow v. State, 468 So. 2d 1104 (Fla. 2d DCA 1985)
- Dawkins v. State, 479 So. 2d 818 (Fla. 2d DCA 1985)
- Serge v. Dreher, 474 So. 2d 846 (Fla. 4th DCA 1985)
- Agatone v. State, 474 So. 2d 846 (Fla. 2d DCA 1985)
- Hearn v. State, 470 So. 2d 826 (Fla. 2d DCA 1985)