HENRY MILLARD MCINTYRE, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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Henry McIntyre appealed his conviction for cocaine possession, claiming he was an innocent passenger with no knowledge of the drug. The court affirmed his conviction but quashed his sentence because it was an improper downward departure from sentencing guidelines without written findings.
The conviction is affirmed because McIntyre's mere assertion of innocence was insufficient to require dismissal after the state properly traversed his motion to dismiss. The sentence is quashed and remanded for resentencing because the downward departure from guidelines lacked required written findings.
[1] A defendant's assertion of ignorance or lack of control over contraband is insufficient to require a finding of not guilty when the State properly traverses a motion to d…
[2] A trial court cannot dismiss a case if the State properly traverses a motion to dismiss filed under Florida Rule of Criminal Procedure 3.190(c)(4).
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“A trial is where disputed issues of fact are determined.”
Establishes that McIntyre's factual dispute with the state required trial resolution, not dismissal based on his assertions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcIntyre was a passenger in a car containing cocaine. He filed a motion to dismiss claiming he had no knowledge of the drug's existence and no control…
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DAUKSCH, Judge.
This is an appeal from a conviction and a cross-appeal from a sentence in a criminal case. We affirm the conviction but quash the sentence.
Appellant alleged in his motion to dismiss, filed under Florida Rule of Criminal Procedure 3.190(c)(4), that he was a passenger in a car which contained cocaine. Appellant said he was with two others in the car and that he had no knowledge of the existence of the drug and no control over it. The state denied his assertions by filing a traverse to the motion to dismiss. Thus a factual dispute existed at that time — the state said he did and the defendant said he didn’t. A trial is where disputed issues of fact are determined. Appellant chose not to go to trial, but to plead nolo contendere. By this plea he neither admits nor denies the state’s allegations and submits himself to the court for disposition. The court found him guilty and sentenced him to two years probation.
A crime was alleged by the state. The state proved at least joint possession of the cocaine. The defendant was properly found guilty and convicted. His mere assertion that he knew nothing of the cocaine and had no control over it is not sufficient to require the trial court to find him not guilty. If the state properly traverses a 3.190(c)(4) motion then the trial judge cannot dismiss the case. Fla.R. Crim.P. 3.190(d). There is no issue raised here regarding the legal sufficiency of the traverse so no error in that regard is before us.
Cross-appellant, upon receiving the brief of appellant which contains in its appendix a copy of appellant’s rap sheet, filed a cross-appeal raising the issue of appellant’s sentence. It is apparent from this rap sheet that the two-years probation given appellant was a downward departure from the sentencing guidelines recommended sentence. No scoresheet is in the record so we quash the sentence and remand for resentencing under the guidelines. Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984), approved, 480 So. 2d 1291 (Fla.1985). If the court intends to depart then the reasons must be in writing in order to permit review to determine the legality of any departure.
Conviction AFFIRMED; Sentence QUASHED.
UPCHURCH, C.J., and SHARP, J., concur.
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Antonal Thornton v. State, 767 So. 2d 1286 (Fla. 5th DCA 2000)…t to this court’s order. The preparation of a scoresheet is required by Florida Rule of Criminal Procedure 3.701(d)(1). See Holton v. State, 573 So. 2d 284, 290-91 (Fla.1990); Mohammed v. State, 591 So. 2d 1062 (Fla. 2d DCA 1991); McIntyre v. State, 502 So. 2d 98 (Fla. 5 th DCA 1987); Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985); Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984). Thornton presents numerous points on appeal, which we find have no merit. First he argues the Prison Releasee Reof-fender Pun…
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Authorities Cited
- Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984)
- Gage v. State, 480 So. 2d 1291 (Fla. 1985)