KENNETH RAY WOODS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that it was error to depart from a presumptive guidelines sentence based on evidence of an offense for which the defendant was not convicted.
The defendant was charged with trafficking in cocaine and unlawful possession of cannabis. The jury found him guilty of the lesser offense of possessi…
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ORFINGER, Judge.
Defendant appeals his conviction and sentence. We affirm the conviction, but vacate the sentence because the departure from the presumptive guidelines sentence was invalid.
Defendant was charged with trafficking in cocaine1 and unlawful possession of cannabis.2 In what was obviously an exercise of its pardon power, the jury found defendant guilty of the lesser offense of possession of cocaine,3 and guilty as charged of possession of cannabis. In departing from the guidelines sentence, the trial court recognized that the jury’s verdict implied a finding that defendant possessed less than 28 grams of cocaine but based the departure on the basis that the uncontroverted evidence established that the defendant possessed 95 grams of cocaine, thus indicating that the cocaine was for more than personal consumption. Defendant argues, and we agree, that it was error to depart based upon consideration of an offense for which a conviction had not been obtained (trafficking in cocaine). Fla.R.Crim.P. 3.701(d)ll. For whatever reason, the jury acquitted defendant of this charge.
The other issues raised by defendant have been considered and found without merit. Thus, defendant’s conviction is affirmed, his sentence is vacated and the cause is remanded for resentencing.
Conviction AFFIRMED; REMANDED for resentencing.
DAUKSCH and COBB, JJ., concur. . § 893.135(l)(b)l, Fla.Stat. (1985). For conviction of the offense of "trafficking in cocaine,” the amount of the substance must be 28 grams or more.
. § 893.13(l)(e), Fla.Stat. (1985).
. § 893.13(l)(a), Fla.Stat. (1985).
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Howard v. State, 820 So. 2d 337 (Fla. 4th DCA 2002)…that jury's acquittal of defendant for charges of armed sexual battery and aggravated battery precluded sentencing court from considering evidence that supported those charges for purposes of imposing aggravated departure sentence); Woods v. State, 509 So. 2d 1370 (Fla. 5th DCA 1987) (holding that where defendant was charged with trafficking in cocaine, but was convicted of only possession, despite fact that uncontroverted evidence established that defendant possessed requisite quantity of cocaine sufficient…
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Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988)…on the subsequent offense because under the explicit provisions of Rule 3.701 d.ll. reasons for departure cannot be based on offenses for which the offender has not been convicted. See Van-Tassell v. State, 512 So. 2d 181 (Fla.1987); Woods v. State, 509 So. 2d 1370 (Fla. 5th DCA 1987). If the subsequent offense is “pending before the court for sentencing” (3.701 d.l. and 4.) at the time sentence is to be imposed on the prior offense, and the subsequent offense is the primary offense (3.701 d.3.), then logical…