STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
WLADIMIR NIEMCOW, APPELLEE/CROSS-APPELLANT
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The State appealed a defendant's sentencing for conspiracy to traffic in cocaine, arguing that the conspiracy conviction carried a mandatory minimum 15-year sentence under Florida law. The court held that conspiracy to traffic in cocaine must be punished as if the defendant had actually committed the underlying trafficking offense, thereby triggering the mandatory minimum penalties applicable to the substantive crime.
The court held that conspiracy to traffic in cocaine must carry the same mandatory minimum sentence of 15 years and $250,000 fine as the underlying substantive trafficking offense, as the statute explicitly provides that conspiracy is punishable as if the defendant had actually committed the prohibited act. When the mandatory penalty exceeds the recommended guidelines sentence, the mandatory penalty takes precedence.
[1] Conspiracy to traffic in cocaine is punishable as if the defendant had actually committed the prohibited act, including any mandatory minimum sentences associated with th…
[2] When a conspiracy conviction carries a mandatory minimum sentence, that sentence takes precedence over a recommended guidelines sentence.
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“The language of section 893.135(4), Florida Statutes (1985) when read in conjunction with section 893.135(l)(b), Florida Statutes (1985), clearly indicates that the legislature intended conspiracy to traffic in cocaine not only to be a felony in the first degree, but also to be punishable as if the defendant had committed the act which he conspired to commit.”
Establishes the court's interpretation that conspiracy carries the same penalties as the underlying offense
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Join FLexlaw to unlock all legal intelligenceWladimir Niemcow was convicted of attempting to traffic in cocaine in an amount greater than 400 grams and conspiracy to traffic in cocaine greater th…
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PER CURIAM.
The defendant was convicted of attempting to traffic in cocaine greater than 400 grams, sections 893.135(l)(b)(3) and 777.04, Florida Statutes (1985) and conspiracy to traffic in cocaine greater than 400 grams, section 893.135(4), Florida Statutes (1985). The trial judge imposed concurrent sentences of six years incarceration followed by five years probation, which fell within the recommended guidelines sentence.
The state appeals arguing that because section 893.135(4) provides that conspiracy “is punishable as if [defendant] had actually committed such prohibited act,” the sentence for conspiracy in this case must be the mandatory minimum sentence of imprisonment for fifteen years that is provided as punishment of the felony defendant conspired to commit, which sentence is greater than the recommended guidelines sentence and under Florida Rule of Criminal Procedure 3.701(d)(9) must be imposed.
The defendant argues that the words “is punishable” in section 893.135(4), Florida Statutes (1985) do not mandate a mandatory minimum sentence on the conspiracy to traffic in cocaine conviction.
The trial judge erred in not imposing the appropriate sentence and fine. The language of section 893.135(4), Florida Statutes (1985) when read in conjunction with section 893.135(l)(b), Florida Statutes (1985), clearly indicates that the legislature intended conspiracy to traffic in cocaine not only to be a felony in the first degree, but also to be punishable as if the defendant had committed the act which he conspired to commit. Because the conspiracy related to trafficking in an amount of cocaine greater than 400 grams, a minimum term of imprisonment of fifteen years and a fine of $250,000.00 were mandated by the statute as punishment for the conspiracy to traffic in cocaine violation. §§ 893.-135(l)(b)(3), 893.135(4), Fla.Stat. (1985) See State v. Maillis, 495 So. 2d 817 (Fla. 2d DCA 1986); State v. Samudio, 460 So. 2d 419 (Fla. 2d DCA 1984). Thus, the recommended guidelines sentence is less than the mandatory penalty and under Rule 3.701(d)(9), the mandatory sentence takes precedence. While this sentence may appear harsh in this case, the legislature has indicated its. intention that the sentencing court not have discretion to ameliorate it.
Accordingly, the sentence entered herein on the conspiracy to traffic in cocaine conviction is reversed and the cause remanded for imposition of a mandatory minimum sentence of fifteen years and a fine of $250,000 on the conspiracy to traffic in cocaine conviction, which sentence may be served concurrently with the attempting to traffic in cocaine conviction.
Affirmed in part, reversed in part, and remanded.
ORFINGER, SHARP and COWART, JJ., concur.
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Cefice Jenkins v. State, 533 So. 2d 297 (Fla. 1st DCA 1988)…e punishment of such conspiracy. The "express provision" for the mandatory minimum sentence of 25 years' imprisonment for conspiracy to traffic in more than 28 grams of heroin is found in sections 893.135(5) and 893.135(l)(c)3. Cf. State v. Niemcow, 505 So. 2d 670 (Fla. 5th DCA 1987). Moreover, rule 3.140(d), Florida Rules of Criminal Procedure, provides that each count of the charging document should cite the applicable statute but that error in such citation should not be a ground for reversal of a convict…
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State v. Niemcow, 506 So. 2d 493 (Fla. 5th DCA 1987)…PER CURIAM. Appellee’s conviction is affirmed but her sentence is vacated on the authority of State v. Niemcow, 505 So. 2d 670 (Fla. 5th DCA 1987) and the cause is remanded for resentencing. JUDGMENT AFFIRMED; SENTENCE VACATED; CAUSE REMANDED. UPCHURCH, C.J., and ORFINGER and COWART, JJ., concur.…
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Chudeusz v. State, 508 So. 2d 418 (Fla. 5th DCA 1987)…e punished “as if he had actually committed such prohibited act.” Therefore, under the conspiracy conviction, it was mandatory that defendant be fined $25,000 and be imprisoned for a minimum period of three years. § 893.135(1)(a)1. State v. Niemcow, 505 So. 2d 670 (Fla. 5th DCA 1987). The trial court correctly imposed the $25,000 fine, but incorrectly imposed it on Count I where it is not required instead of on Count II, where it is. Defendant’s five year concurrent sentences of imprisonment to be followed by…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Nester Samudio, 460 So. 2d 419 (Fla. 2d DCA 1984)
- BAY Cnty. v. Fensom, 495 So. 2d 817 (Fla. 1st DCA 1986)