RICKY COLVIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ricky Colvin appealed his convictions for trafficking in cocaine and possession of narcotic paraphernalia. While the appellate court affirmed his convictions, it found that the trial court's reasons for departing from sentencing guidelines were invalid and reversed the sentences, remanding for resentencing within the guidelines.
The trial court's departure reasons were invalid. The court reversed the sentences and remanded for resentencing within the guidelines because: (1) the conspiracy charge was not charged or convicted; (2) any prior drug abuse conviction should have been factored into the scoresheet, making it an impermissible reason for departure; and (3) the quantity of cocaine (slightly over 56 grams) was not so great as to justify departure given the charge range of 28-200 grams.
[1] A trial court's written reasons for departing from presumptive sentencing guidelines must be valid and supported by clear and convincing evidence.
[2] A large-scale organized scheme of criminal conspiracy, for which no conviction has been obtained, is not a valid reason for departing 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“None of the reasons noted on the scoresheet, however, are valid clear and convincing reasons for departure.”
Establishes the legal standard that departure reasons must be clear and convincing, and that the trial court failed to meet this standard.
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Join FLexlaw to unlock all legal intelligenceColvin was charged with trafficking in cocaine (28+ grams), grand theft of an automobile, and possession of drug paraphernalia. The trial court grante…
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PER CURIAM.
The appellant, Ricky Colvin, appeals his convictions on charges of trafficking in cocaine and possession of narcotic paraphernalia and the resulting judgments and sentences. After reviewing the briefs and record on appeal, we find no merit in appellant’s argument as it pertains to his convictions or adjudication of guilt. We do, however, find merit in the appellant’s contention that the trial court’s written reasons for departing from the presumptive guidelines sentence are invalid.
The appellant was charged by information with one count of trafficking by possession of twenty-eight or more grams of cocaine in violation of section 893.135, Florida Statutes (1983), one count of grand theft of an automobile in violation of section 812.014, Florida Statutes (1983), and one count of possession of drug paraphernalia, a free base pipe, in violation of section 893.147, Florida Statutes (1983). Following the presentation of the state’s evidence, the trial court granted appellant’s motion for judgment of acquittal on the grand theft charge. The jury returned a verdict of guilty as charged on the remaining counts.
On the trafficking charge, the trial court fined the appellant $25,000 and sentenced him to ten years imprisonment including the three year minimum mandatory sentence provided by section 893.135(1)(b)1, Florida Statutes (1983). On the possession of paraphernalia charge, the appellant was sentenced to one year imprisonment to run concurrently with the trafficking sentence. Both sentences allowed a total of 154 days credit for time served. The sentencing guidelines scoresheet reflected a recommended sentence of three-and-one-half to four-and-one-half years. The following reasons for departure were noted on the bottom of the scoresheet:
(1) Large scale organized scheme of criminal conspiracy to distribute drugs in Polk County;
(2) Prior history of drug abuse;
(S) Large amount of cocaine found in the car. If the reasons noted on the bottom of the scoresheet had been valid reasons for departure, a separate written statement of reasons for departure would not have been necessary. See Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986). None of the reasons noted on the scoresheet, however, are valid clear and convincing reasons for departure.
First, the “large scale organized scheme of criminal conspiracy to distribute drugs in Polk County” seems to refer to a crime which was not charged and for which no conviction had been obtained. Fla.R.Crim.P. 3.701(d)(11); see also, Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986). As to appellant’s “prior history of drug abuse,” any prior conviction for drug abuse should have been factored into the score-sheet and therefore would have been an impermissible reason for departure under Hendrix v. State, 475 So. 2d 1218 (Fla.1985). If no conviction for drug abuse had previously been obtained, this would have been an invalid reason under Florida Rule of Criminal Procedure 3.701(d)(11). Third, the state concedes that “the large amount of cocaine found in the car” is an impermissible reason. Clearly, because the appellant was charged with possession of at least twenty-eight grams but not more than 200 grams, and the evidence presented at trial indicated that the appellant was at most in possession of slightly over fifty-six grams, the quantity was not so great as to justify departure. See Gallo v. State, 483 So. 2d 876 (Fla. 2d DCA 1986).
We, therefore, reverse appellant’s sentences and remand for resentencing within the guidelines. We affirm the trial court, however, in all other respects.
Affirmed in part, reversed in part, and remanded.
SCHOONOVER, A.C.J., and FRANK and HALL, JJ., concur.
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Hoyte v. State, 518 So. 2d 975 (Fla. 2d DCA 1988)…h, nor convicted of, bringing a controlled substance into the state of Florida in violation of section 893.13(l)(d), Florida Statutes (1985). Thus, the trial court could not depart based upon the appellant’s effort to “smuggle.” See Colvin v. State, 501 So. 2d 118 (Fla. 2d DCA 1987). To the extent that the trial court’s second reason can be interpreted to mean that departure was based upon the professional manner in which the crime of possession of a controlled substance was committed, I do not believe that…
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State v. Lemon, 517 So. 2d 117 (Fla. 3d DCA 1987)…A 1986). See also Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA [*118] 1987). But see Vogtsberger v. State, 502 So. 2d 984 (Fla. 1st DCA), review denied, 511 So. 2d 299 (Fla.1987); Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987); Colvin v. State, 501 So. 2d 118 (Fla. 2d DCA 1987); Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986); Speights v. State, 495 So. 2d 882 (Fla. 2d DCA), review denied, 501 So. 2d 1283 (Fla.1986). . The record discloses that the sentence imposed was an important factor in the entr…
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Cowan v. State, 505 So. 2d 640 (Fla. 1st DCA 1987)…regard to the court’s reliance on Cowan’s “history of violent behavior,” [*642] Fla.R.Crim.P. 3.701(d)(ll) provides that departure cannot be based on factors related to prior arrests for which convictions have not been obtained. In Colvin v. State, 501 So. 2d 118 (Fla. 2d DCA 1987), the trial court departed from the guidelines based on the defendant’s “history of drug abuse.” The reason was invalidated under Rule 3.701(d)(ll) because no convictions had been obtained. In the instant case, no arrests or convic…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986)
- Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986)
- Empiregas v. JOE Herrmann's, Inc., 483 So. 2d 876 (Fla. 2d DCA 1986)