ROBERTO MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roberto Martin appeals his departure sentence for conspiracy to traffic in cannabis, arguing it should be reconsidered in light of the Florida Supreme Court's decision in Atwaters v. State, which invalidated the quantity of drugs as a valid reason for sentencing departure. The appellate court denied the motion to recall mandate and affirmed the conviction and sentence.
The appellate court denied Martin's motion to recall mandate and affirmed the conviction and sentence. Although the quantity-of-drugs reason for departure was subsequently deemed invalid by the supreme court, the court concluded that the trial court would impose the same sentence relying on the remaining valid reasons (international scope and sophistication of the conspiracy), making reconsideration unnecessary.
[1] The professional manner in which a crime was committed is a valid reason for a departure sentence.
[2] The quantity of drugs involved in a crime does not constitute a valid reason for departure from sentencing guidelines.
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 professional manner employed in the furtherance of a criminal scheme has been held a valid reason for departure”
Establishes that sophistication and professional manner of committing the crime are valid departure reasons
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Join FLexlaw to unlock all legal intelligenceA jury convicted Martin of conspiracy to traffic in more than 10,000 pounds of cannabis. The guideline sentencing range was 3½ to 4½ years, but Florid…
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JOANOS, Judge.
Appellant’s motion to recall mandate, which was filed prior to issuance of the mandate, has served to stay the mandate in this case. In essence, appellant’s motion sought reconsideration of the departure sentence imposed, in light of the supreme court’s opinion in Atwaters v. State, 519 So. 2d 611 (Fla.1988), released contemporaneously with this court’s denial of appellant’s motion for rehearing. We deny the motion.
A jury found appellant guilty of conspiracy to traffic in more than 10,000 pounds of cannabis. Although the recommended guideline sentencing range was 3½ to 4½ years, section 893.135, Florida Statutes, provides a 15-year mandatory minimum term of imprisonment for the offense for which appellant stands convicted.
Notwithstanding the mandatory minimum sentence, which appellant concedes is applicable to this case, the trial court imposed a sentence which exceeds both the mandatory minimum sentence and the recommended guideline sentence. As reasons for departure, the trial court relied on (1) the mandatory provisions of section 893.-135, (2) the international scope of the conspiracy, (3) the sophistication of the conspiracy, and (4) the fact that the quantity of cannabis involved was three times the amount required to trigger the 15-year mandatory minimum sentence.
We affirmed appellant’s conviction and departure sentence, after determining that reasons two, three, and four constituted permissible reasons for departure. The second and third departure reasons both contemplate the professional manner in which the crime was committed. The professional manner employed in the furtherance of a criminal scheme has been held a valid reason for departure. See Downing v. State, 515 So. 2d 1032 (Fla. 1st DCA 1987); Lewis v. State, 496 So. 2d 211 (Fla. 1st DCA 1986); Dickey v. State, 458 So. 2d 1156 (Fla. 1st DCA 1984); Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987); Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986). At the time of our earlier determination we considered the fourth reason, which contemplates the quantity of drugs involved in the criminal offense, to have been valid. See Flournoy v. State, 507 So. 2d 668 (Fla. 1st DCA 1987); Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986). Subsequently, however, in Atwaters v. State, 519 So. 2d 611 (Fla.1988), the supreme court held that the quantity of drugs involved in a crime does not constitute a valid reason for departure. See also Flournoy v. State, 522 So. 2d 340 (Fla.1988), disapproving this court’s en banc opinion reported at 507 So. 2d 668 (Fla. 1st DCA 1987).
From our examination of the record, we conclude that on remand, the trial court would impose the same sentence although the fourth reason would now be deemed invalid. Therefore, we deny appellant’s motion. See Albritton v. State, 476 So. 2d 158 (Fla.1985).
Accordingly, we deny the motion to recall mandate and affirm the conviction and sentence appealed.
BARFIELD, J., concurs with written opinion.
ERVIN, J., dissents with written opinion.
BARFIELD, Judge,
concurring:
I concur in denying the motion, but I do not subscribe to Judge Joanos’ opinion. I dissented in Flournoy v. State, 507 So. 2d 668 (Fla. 1st DCA 1987) and did not base my affirmance in this case on a position contrary to that dissent. This case did not justify an opinion on the merits originally and doesn’t justify one now.
ERVIN, Judge,
dissenting.
I respectfully dissent. I would grant the motion to recall mandate and reverse and remand the departure sentence imposed pursuant to the Albritton (Albritton v. State, 476 So. 2d 158 (Fla.1985)) reasonable doubt standard. As appears from the majority’s opinion, reasons one and four of the four reasons given for departure must now be considered invalid. Reasons two and three are based upon a single, valid, underlying foundation: the professional manner in which the crime was committed.
Because I do not have the gift of prophecy, I would remand the case for resentencing.
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Hernandez v. State, 575 So. 2d 640 (Fla. 1991)…o. 2d 661 (Fla. 3d DCA 1988); Krebs v. State, 534 So. 2d 1236 (Fla. 5th DCA 1988), review denied, 542 So. 2d 1333 (Fla.1989); Rodrique v. State, 533 So. 2d 931 (Fla. 1st DCA 1988); Varela v. State, 530 So. 2d 960 (Fla. 2d DCA 1988); Martin v. State, 523 So. 2d 1226 (Fla. 1st DCA), review denied, 529 So. 2d 694 (Fla.1988); Gray v. State, 522 So. 2d 91 (Fla. 1st DCA 1988); Hoyte v. State, 518 So. 2d 975 (Fla.2d DCA 1988); Downing v. State, 515 So. 2d 1032 (Fla. 1st DCA 1987), quashed in part on other grounds, 53…
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Rodrique v. State, 533 So. 2d 931 (Fla. 1st DCA 1988)…d. Albritton v. State, 476 So. 2d 158 (Fla. 1985). We conclude that the following reasons are valid: the professional manner employed in the commission of a crime (paragraphs 2 and 5 read in conjunction [*932] with one another), see Martin v. State, 523 So. 2d 1226 (Fla. 1st DCA 1988), and the timing of the crime in relation to prior offenses and release from incarceration or supervision (paragraph 4). See Stubbs v. State, 522 So. 2d 444 (Fla. 1st DCA 1988); Williams v. State, 504 So. 2d 392 (Fla.1987). The re…
Authorities Cited (12 total)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- Winford Lee Dickey v. State, 458 So. 2d 1156 (Fla. 1st DCA 1984)
- Mullen v. State, 483 So. 2d 754 (Fla. 5th DCA 1986)
- Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986)
- Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987)
- Flournoy v. State, 507 So. 2d 668 (Fla. 1st DCA 1987)
- Alphonso Lewis v. State, 496 So. 2d 211 (Fla. 1st DCA 1986)
- Downing v. State, 515 So. 2d 1032 (Fla. 1st DCA 1987)