ANTHONY J. JIMENEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's refusal to identify a supplier and a de minimis excess quantity of cocaine are inadequate grounds for departing from a presumptive sentence.
Appellant was convicted of delivery and conspiracy to traffic cocaine. The trial court departed from the presumptive sentence based on the appellant's…
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FRANK, Judge.
The appellant, Anthony J. Jimenez, appeals from the trial court’s judgment and sentence following conviction for delivery of and conspiracy to traffic in one ounce of cocaine in violation of section 893.135, Florida Statutes (1985). We have reviewed and rejected four of the appellant’s five points on appeal. We find merit in the attack upon the trial court’s grounds for departure from a presumptive sentence. The appellant’s refusal to identify his supplier and to cooperate with law enforcement officials is an inadequate base for departing from a guidelines sentence. Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985).
Similarly, we cannot sustain the trial court’s reliance upon the quantity of cocaine as a clear and convincing reason for departure. Although the record speaks to the amount of cocaine involved in the trafficking as one ounce, our conversion to grams discloses that it exceeded the 28 gram statutory threshold by approximately .35 grams, a de minimus excess sufficient to warrant conviction but not depar ture.1 Gallo v. State, 483 So. 2d 876 (Fla. 2d DCA 1986). But cf. Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986) (valid departure based upon quantity of drugs where 1,952.5 grams of cocaine involved in conspiracy to traffic); Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA 1986) (quantity of drugs justified departure where 965.4 grams of cocaine involved in trafficking transaction).
Accordingly, we affirm the appellant’s conviction but reverse the sentence and remand to the trial court for resentencing within the guidelines’ presumptive range. See Edwards v. State, 482 So. 2d 553 (Fla. 2d DCA 1986).
CAMPBELL, A.C.J., and HALL, J., concur. . Section 893.135(3).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)…offense of trafficking which contemplates amounts much greater than 400 grams. Where the quantity of cocaine falls within the mandatory sentencing range, as here, departure based on quantity has been held improper by some courts. Jimenez v. State, 486 So. 2d 36 (Fla. 2d DCA April 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.…
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Benson Price v. State, 519 So. 2d 76 (Fla. 2d DCA 1988)…(Fla. 2d DCA 1984). The state concedes that the fourth reason is invalid. Failure to cooperate with law enforcement officials in identifying others involved in illegal drug transactions is an inadequate basis to support departure. Jimenez v. State, 486 So. 2d 36 (Fla. 2d DCA 1986); Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985). Since we cannot say that the state has carried its burden to show beyond a reasonable doubt that the court would have departed absent the invalid reasons, we remand the case to…
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Welker v. State, 504 So. 2d 802 (Fla. 1st DCA 1987)…nt’s first point on appeal, we conclude that each of these reasons is invalid. While some decisions have disapproved departure based on the quantity of drugs involved, see, e.g., Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986); Jimenez v. State, 486 So. 2d 36 (Fla. 2d DCA 1986); Gallo v. State, 483 So. 2d 876 (Fla. 2d DCA 1986), other decisions have approved departure where the amount of drugs the defendant possessed far exceeded the amount required for conviction of the offense, see, e.g., Atwaters v. S…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986)
- Empiregas v. JOE Herrmann's, Inc., 483 So. 2d 876 (Fla. 2d DCA 1986)
- Bienvenido Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA 1986)
- Edwards v. State, 482 So. 2d 553 (Fla. 2d DCA 1986)