MICHAEL BANKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Michael Banks appeals his conviction for trafficking in cannabis, challenging an above-guideline sentence of 15 years plus a $25,000 fine when the recommended guidelines sentence was 3.5 to 4.5 years. The appellate court affirms the conviction but vacates the sentence, finding that none of the trial court's stated reasons for departing from the guidelines were valid under Florida sentencing law.
None of the trial court's four reasons for departure were valid. Prior convictions already factored into the guidelines scoresheet cannot justify departure. An escalating pattern of criminal conduct cannot be inferred from a single prior conviction. The quantity of drugs involved is a matter for the legislature, not the sentencing judge. A defendant's status as a drug dealer is an inherent element of trafficking and therefore not a valid departure reason.
[1] Prior offenses factored into a sentencing guidelines scoresheet are an invalid reason for departure.
[2] The timing and escalating nature of criminal activity is not a valid reason for departure when the offenses represent a continuing, rather than escalating, pattern.
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“The defendant's prior offenses were factored in the sentencing guidelines scoresheet and are an invalid reason for departure in this case.”
Establishes that prior offenses already incorporated into the guidelines cannot serve as an independent basis for departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBanks was convicted of trafficking in cannabis in violation of Florida statutes. The trial court imposed a 15-year sentence with a $25,000 fine, depar…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sentencing Guidelines Departure Reasons cases and more on FLexlaw
COWART, Judge.
Defendant appeals his conviction of trafficking in cannabis in violation of sections 893.135, 893.03(l)(c), 893.13(l)(a)2., Florida Statutes (1985).
The defendant’s recommended guidelines sentence was three and one-half to four and one-half years.
The trial court sentenced defendant to fifteen years’ incarceration and imposed a $25,000 fine listing as reasons for departure defendant’s prior offenses, timing and escalating nature of the offenses, the quantity of cannabis involved, and the defendant’s status as a drug dealer. The defendant’s prior offenses were factored in the sentencing guidelines scoresheet and are an invalid reason for departure in this case. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
The second reason for departure, the timing and escalating nature of the defendant’s criminal activity, is not a valid reason for departure in this case. The defendant’s prior offense was possession of a controlled substance with intent to distribute. The instant offense does not represent an escalating, but rather a continuing, pattern of drug-related offenses. Nichols v. State, 504 So. 2d 414 (Fla. 1st DCA 1987).
Also, one prior conviction does not demonstrate an escalating pattern of criminal conduct. Otherwise, in every case where a defendant has a prior conviction the trial judge could list this as a reason for departure which conflicts with the purposes of the sentencing guidelines. Smith v. State, 507 So. 2d 788 (Fla. 1st DCA 1987).
For the trial court to impose a heavier penalty based on the amount of drugs involved invades the province of the legislature which promulgated the statutory ranges for the quantity of proscribed substances involved in an offense1 and is an invalid reason for departing from the recommended guidelines sentence. Koopman v. State, 507 So. 2d 684 (Fla. 2d DCA 1987); Stanley v. State, 507 So. 2d 1131 (Fla. 5th DCA 1987); Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986); Compare Santana v. State, 507 So. 2d 680 (Fla. 2d DCA 1987); Flournoy v. State, 507 So. 2d 668 (Fla. 1st DCA 1987); Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986); Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985), rev. denied, 488 So. 2d 830 (Fla.1986); Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984), rev. denied, 464 So. 2d 556 (Fla. 1985).
This court has held the defendant’s status as a drug dealer to be a valid reason for departing from the recommended guidelines sentence on convictions of unlawful possession of controlled substances with the intent to sell or deliver. See Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986); Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984).
However, Banks was convicted of “trafficking” in cannabis. To “traffic” in a commodity means to “deal” in it and vice versa.2 Both terms encompass bargaining, trading, and bartering in some commodity. To deal or trade is therefore an inherent component of the crime of trafficking in a controlled substance. The statutory definition of trafficking in section 893.135(l)(a) is broader than mere possession with intent to sell or deliver, section 893.13, in that it also includes the knowing possession of an amount in excess of 100 pounds of cannabis, but not more restrictive.
Therefore a defendant’s status as a “drug dealer” in a “trafficking” case is an invalid reason for departure. See Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987).
None of the reasons listed by the trial judge for departing from the recommended guidelines sentence are clear and convincing. Accordingly, we affirm the conviction, vacate the sentence, and remand for resentencing within the recommended guidelines sentence.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
UPCHURCH, C.J., and DAUKSCH, J., concur. . § 893.135(1), Fla.Stat. (1985).
. Webster’s New Collegiate Dictionary 1229 (1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Atwaters v. State, 519 So. 2d 611 (Fla. 1988)…ugs is an essential component or factor of each defined drug offense. Id. at 672 (Zehmer, J., concurring in part, dissenting in part). Other district courts of appeal have recently adopted views similar to those of Judge Zehmer. In Banks v. State, 509 So. 2d 1320 (Fla. 5th DCA 1987), the district court, in finding the amount of drugs involved to be an invalid reason for departure, stated: “For the trial court to impose a heavier penalty based on the amount of drugs involved invades the province of the legisl…
-
Collins v. State, 535 So. 2d 661 (Fla. 3d DCA 1988)…concedes that this was an invalid reason for the subject departure. See State v. Cote, 487 So. 2d 1039, 1039 (Fla.1986); Chirino v. State, 516 So. 2d 97, 98 (Fla. 3d DCA 1987); Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987); Banks v. State, 509 So. 2d 1320, 1321-22 (Fla. 5th DCA 1987). The judgments of conviction under review are affirmed; the sentences under review are reversed, and the cause is remanded to the trial court for resentencing within the sentencing guidelines.…
-
Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988)…cannot be a clear and convincing reason justifying a departure sentence on the prior offense under Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Gregory v. State, 475 So. 2d 1221 (Fla.1985); Deer v. State, 476 So. 2d 163 (Fla.1985); Banks v. State, 509 So. 2d 1320 (Fla. 5th DCA 1987); Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986); State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986). If at sentencing on the prior offense the defendant has been merely arrested for (or accused of) the subsequent crime, bu…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)
- Murphy v. State, 459 So. 2d 337 (Fla. 5th DCA 1984)
- Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986)
- Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986)
- Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985)
- Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987)
- Newton v. State, 490 So. 2d 179 (Fla. 1st DCA 1986)
- Santana v. State, 507 So. 2d 680 (Fla. 2d DCA 1987)
- First Quality Rest. v. Bryan, 507 So. 2d 788 (Fla. 1st DCA 1987)