JOSE ANTONIO CABRERA-SARMIENTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant was convicted of trafficking in over 400 grams of cocaine. While affirming the conviction, the court vacated the sentence and remanded for resentencing because the trial court improperly applied sentencing guidelines without the defendant's affirmative selection.
The conviction is affirmed, but the sentence is vacated and remanded for resentencing. The trial court's first reason for enhancement (quantity of drugs) was an invalid basis for departure because drug quantity is inherent to the offense and already factored into the guideline score. The second reason (leadership role) is a valid basis for departure. Any sentence must be a non-guidelines sentence unless the defendant affirmatively selects to be sentenced under the guidelines.
[1] A trial court may not enhance a sentence based on the quantity of drugs involved in the offense, as this factor is already incorporated into the guideline score.
[2] A defendant's leadership role in a criminal organization can be a valid basis for departing from a guidelines sentence.
Previewing 2 of 3 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 crime was committed before October 1,1983, and there is nothing in the record to indicate that defendant affirmatively selected to be sentenced under the guidelines.”
Establishes the key procedural requirement that defendants must affirmatively elect guidelines sentences for pre-October 1, 1983 crimes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant was convicted of trafficking in cocaine (576 kilograms). The trial court imposed an enhanced sentence based on two factors: the great quanti…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORFINGER, Judge.
Defendant’s conviction for trafficking in more than 400 grams of cocaine is affirmed. We vacate his sentence, however, and remand for resentencing because it appears from the sentencing order that the trial court considered the sentence to be a guideline sentence, from which he was departing. The crime was committed before October 1,1983, and there is nothing in the record to indicate that defendant affirmatively selected to be sentenced under the guidelines. See Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985).
The trial judge gave two reasons for “enhancement of the guideline sentence”: 1) the great quantity of cocaine involved, i.e., 576 kilograms; 2) “The defendant’s leadership role in an extensive cocaine smuggling organization.” The first reason would have been an invalid basis for departure because the quantity of drugs involved in the crime is an inherent component of the offense which has already been factored into the guideline score, and cannot be used again as a basis for departure. Atwaters v. State, 519 So. 2d 611 (Fla.1988); Banks v. State, 509 So. 2d 1320 (Fla. 5th DCA 1987); Stanley v. State, 507 So. 2d 1131 (Fla. 5th DCA 1987). The second ground, however, has been held to be a valid basis for departure from a guidelines sentence. See Fletcher v. State, 508 So. 2d 506 (Fla. 4th DCA 1987); McCullum v. State, 498 So. 2d 1374 (Fla. 3d DCA 1986); Thompson v. State, 478 So. 2d 462 (Fla. 1st DCA 1985).
Any sentence imposed shall be a non-guidelines sentence unless the defendant affirmatively selects to be sentenced under the guidelines.
Conviction AFFIRMED; Sentence VACATED and REMANDED.
DAUKSCH and COBB, JJ., concur.
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Citator
Cited By
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Brawn v. State, 582 So. 2d 50 (Fla. 5th DCA 1991)…grand theft and may not be used to support a departure sentence. See State v. Fletcher, 530 So. 2d 296 (Fla.1988); Harris v. State, 566 So. 2d 823 (Fla. 5th DCA 1990); Collins v. State, 535 So. 2d 661 (Fla. 3d DCA 1988); Cabrera-Sarmiento v. State, 522 So. 2d 1080 (Fla. 5th DCA 1988); Crosby v. State, 518 So. 2d 477 (Fla. 5th DCA 1988). Secondly, the trial court stated that when Brawn testified at trial he accused the school representatives who were state witnesses of not telling the truth and conspiring aga…
Authorities Cited
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- Thompson v. State, 478 So. 2d 462 (Fla. 1st DCA 1985)
- Linford Fletcher v. State, 508 So. 2d 506 (Fla. 4th DCA 1987)
- Stanley v. State, 507 So. 2d 1131 (Fla. 5th DCA 1987)
- Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985)
- Michael Banks v. State, 509 So. 2d 1320 (Fla. 5th DCA 1987)
- McCULLUM v. State, 498 So. 2d 1374 (Fla. 3d DCA 1986)