RAMON PEDRAZA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ramon Pedraza appealed his sentence for cocaine trafficking and firearm possession, arguing the trial court improperly departed from sentencing guidelines. The court reversed, holding that the trial court lacked valid reasons to depart from the mandatory minimum fifteen-year sentence required by statute.
The court reversed the sentence, holding that none of the trial court's stated reasons justified departure from the presumptive sentence. Failure to cooperate is an insufficient basis for departure, the de minimis excess of cocaine over the statutory threshold does not warrant departure, and the firearm use was already factored into the guidelines scoresheet and cannot support an additional departure.
[1] A defendant's failure to cooperate with law enforcement officers, outside of a plea agreement, is an insufficient reason for departure from sentencing guidelines.
[2] Polygraph examination results and testimony are inadmissible as proof of the validity of a lie detector test unless properly substantiated in the record.
Previewing 2 of 4 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“Pedraza owed no legal obligation to cooperate with the authorities, outside of his plea agreement for a lower minimum sentence as permitted under section 893.135(3), Florida Statutes (1985). Failure to cooperate with law enforcement officers is an insufficient reason for departure from sentencing guidelines.”
Establishes that lack of cooperation cannot support sentencing departure when cooperation was purely contractual under plea agreement
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Join FLexlaw to unlock all legal intelligencePedraza pleaded guilty to trafficking in cocaine exceeding 400 grams and carrying a concealed firearm pursuant to a plea agreement requiring him to id…
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NESBITT, Judge.
Ramon Pedraza pled guilty to trafficking in cocaine in excess of 400 grams and carrying a concealed firearm based upon a plea agreement stipulation that he would receive a mandatory minimum five years’ incarceration if he would, by sworn statement as verified by polygraph examination, identify the drug supplier. When he failed the lie detector test and refused to cooperate, he received concurrent sentences of thirty years and five years. . Pedraza contends that the trial court erred in departing from the sentencing guidelines based upon the facts that he failed to cooperate according to the terms of the plea agreement, possessed cocaine in excess of 400 grams (i.e., 468 grams), and used a firearm during the commission of the trafficking offense. We agree and reverse the sentence.
The guidelines sentencing score-sheet indicated that Pedraza should be sentenced to a term of incarceration of three and one-half to four and one-half years. His conviction for trafficking in cocaine in excess of 400 grams, under section 893.-135(1)(b)3, Florida Statutes (1985), required a mandatory minimum sentence of fifteen years. Since the mandatory minimum is in excess of the guidelines recommended sentence, it takes precedence as the presumptive sentence. Fla.R.Crim.P. 3.701(d)(9); cf. Tanner v. State, 468 So. 2d 505, 506 (Fla. 2d DCA 1985). The trial judge, in departing from the guidelines presumptive sentence, must articulate clear and convincing reasons for so doing. Santiago v. State, 478 So. 2d 47 (Fla.1985); Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985). Fla.R.Crim.P. 3.701(d)(ll). Here, none of the enumerated factors stated by the trial court justified departure from the sentencing guidelines.
Pedraza owed no legal obligation to cooperate with the authorities, outside of his plea agreement for a lower minimum sentence as permitted under section 893.135(3), Florida Statutes (1985). Failure to cooperate with law enforcement officers is an insufficient reason for departure from sentencing guidelines. Banzo, 464 So. 2d at 622; Jimenez v. State, 486 So. 2d 36 (Fla. 2d DCA 1986). Furthermore, neither the testimony of the polygraph examiner nor the written polygraph results were in the record as requisite proof of the validity of the lie detector test. See Hearn v. State, 470 So. 2d 826 (Fla. 2d DCA 1985).
Additionally, assuming the trial court’s finding that Pedraza was in possession of 468 grams was correct,1 it was a de minimis amount in excess of the quantity necessary to impose a fifteen-year mandatory minimum sentence. Departure based on this factor was improper. Jimenez, 486 So. 2d at 36 (quantity involved exceeded the 28-gram statutory threshold by .35 grams, a de minimis excess insufficient to warrant a departure); cf. Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986) (where the quantity of drugs involved falls within a range specified by statute defining the crime, the amount of drugs involved is an invalid reason for departure); Pursell v. State, 483 So. 2d 94, 95 (Fla. 2d DCA 1986) (quantity of drugs may he a valid basis for departure where the quantity is well in excess of the statutory quantity necessary for conviction of conspiracy to traffic).
Finally, the trial court was not at liberty to depart from the presumptive sentence based on the use of a firearm during the commission of the offense charged since this element was already factored into the guideline scoresheet. See Flemmings v. State, 476 So. 2d 292, 294 (Fla. 3d DCA 1985); Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1985); Fla.R.Crim.P. 3.701(d)(11).
Accordingly, the sentence is reversed and the cause is remanded for resentencing in conformity with the presumptive sentence under the guidelines, that is, the mandatory minimum sentence.
. The record is devoid of evidence substantiating the quantity of cocaine that Pedraza possessed.
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Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987)…e presumptive sentence. Wetherby v. State, 469 So. 2d 862 (Fla. 1st DCA 1985). Thus, for the trial court properly to enhance the presumptive sentence, it was required to express clear and convincing reasons for the extended period. Pedraza v. State, 493 So. 2d 1122 (Fla. 3d DCA 1986), rev. denied, 504 So. 2d 768 (Fla.1987). With the exception of the reason associated with the quantity of cocaine, see, e.g., Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986), the trial court’s bases for departure are invali…
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Jacobs v. State, 522 So. 2d 540 (Fla. 3d DCA 1988)…the sentence exceeds both the guidelines and the mandatory minimum sentence. See Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987), review denied, 519 So. 2d 987 (Fla.1988); Hernandez v. State, 501 So. 2d 163 (Fla. 3d DCA 1987); Pedraza v. State, 493 So. 2d 1122, 1123 (Fla. 3d DCA 1986), review denied, 504 So. 2d 768 (Fla.1987).…
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Hernandez v. State, 501 So. 2d 163 (Fla. 3d DCA 1987)…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, vacate the sentence, and remand the cause to the trial court for resen-tencing. On remand, th…
Authorities Cited
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986)
- Aniceto P. Santiago v. State, 478 So. 2d 47 (Fla. 1985)
- Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)
- Todd v. State, 478 So. 2d 47 (Fla. 1985)
- Callaghan v. State, 462 So. 2d 832 (Fla. 4th DCA 1984)
- Tanner v. State, 468 So. 2d 505 (Fla. 2d DCA 1985)
- Hearn v. State, 470 So. 2d 826 (Fla. 2d DCA 1985)
- Flemmings v. State, 476 So. 2d 292 (Fla. 3d DCA 1985)
- Jimenez v. State, 486 So. 2d 36 (Fla. 2d DCA 1986)