DAVID MICHAEL CHUDEUSZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Chudeusz was convicted of attempted trafficking in cannabis and conspiracy to traffic in cannabis. The appellate court affirmed the convictions but vacated and remanded the sentences because the trial court imposed a mandatory $25,000 fine on the wrong count.
The convictions are affirmed. The sentences are vacated and remanded because while the imprisonment sentences are within guideline ranges, the $25,000 mandatory fine was incorrectly imposed on Count I (attempted trafficking) instead of Count II (conspiracy), where it is statutorily required.
[1] A conviction for conspiracy to traffic in a controlled substance requires punishment as if the prohibited act itself had been committed.
[2] A mandatory fine for a conspiracy conviction must be imposed on the conspiracy count, not on a related substantive offense count.
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 person convicted of such conspiracy be punished "as if he had actually committed such prohibited act."”
Establishes that conspiracy convictions carry the same mandatory penalties as the underlying substantive offense
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted on Count I of attempted trafficking in excess of 100 pounds of cannabis (second degree felony) and on Count II of conspiracy t…
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ORFINGER, Judge.
This appeal is submitted with an An-ders 1 brief, and we agree that no trial errors are demonstrated.
Defendant was convicted on Count I of attempted trafficking in excess of 100 pounds of cannabis, a second degree felony. On Count II, defendant was convicted of conspiracy to traffic in excess of 100 pounds of cannabis, a first degree felony. § 893.135(4), Fla.Stat. (1985). This statute requires that a person convicted of such conspiracy be 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 five years of probation are not departure sentences because the incarcerative portion is within the recommended guidelines range, and the combined period of incarceration and probation does not exceed the maximum statutory penalty for either crime. See McDowell v. State, 491 So. 2d 594 (Fla. 5th DCA 1986); Fla.R.Crim.P. 3.701, Committee Note (d)(12). The convictions are affirmed. The sentences are vacated and the cause is remanded for entry of corrected sentences. The defendant need not be present at re-sentencing.
Convictions AFFIRMED.
Sentences VACATED and REMANDED.
UPCHURCH, C.J., and COBB, J., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thrasher v. State, 528 So. 2d 474 (Fla. 1st DCA 1988)…renced the committee note to rule [*477] 3.701(d)(12), and held that since the total sanction imposed was fifteen years, the sentence was within the guidelines and no error had been demonstrated. Millard, 503 So. 2d at 940. Accord Chudeusz v. State, 508 So. 2d 418 (Fla. 5th DCA 1987). Appellant in the instant case received a sentence of five years in Case No. 87-246, and a sentence of four years to be followed by a one-year period of probation in this case. The offenses in both cases were third degree feloni…
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Suarez v. State, 635 So. 2d 154 (Fla. 2d DCA 1994)…uch a penalty. Thus, while the trial court correctly imposed a $50,000 fine on Suarez, such was not properly reflected in the written judgment and sentencing documents. A correction of those documents is, therefore, necessary. See Chudeusz v. State, 508 So. 2d 418 (Fla. 5th DCA 1987). Accordingly, the instant cause is remanded for correction of the judgment and sentence consistent with this opinion. Suarez’s convictions are, otherwise, affirmed. ALTENBERND and BLUE, JJ., concur.…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Wladimir Niemcow, 505 So. 2d 670 (Fla. 5th DCA 1987)
- Seoane v. State, 491 So. 2d 594 (Fla. 3d DCA 1986)
- McDOWELL v. State, 491 So. 2d 594 (Fla. 5th DCA 1986)