PABLO MEDINA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pablo Medina was on probation for cocaine trafficking when he committed another trafficking offense. The trial judge sentenced him to 60 years (two consecutive 30-year sentences), departing substantially from the sentencing guidelines range of 7-9 years. The appellate court reversed, finding the trial judge's stated reasons for departure were not sufficiently clear and convincing under the standards set in State v. Pentaude.
The trial judge's departure from the sentencing guidelines was improper because the stated reasons were not sufficiently clear and convincing under the standards established in State v. Pentaude. The sentence is reversed and the case is remanded for resentencing within the recommended guidelines range.
[1] A trial court may depart from sentencing guidelines when the underlying reasons for a probation violation are sufficiently egregious.
[2] A defendant's commission of new substantive offenses while on probation can constitute an egregious reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“The defendant was on probation for Trafficking in Cocaine and while on this probation committed another Trafficking offense. Based on the facts of both cases, the Court finds the Defendant showed a complete lack of respect for the Criminal Justice System and finds clear and convincing reasons due to these aggravating circumstances to exceed the sentencing guidelines.”
The trial judge's stated justification for departing from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceMedina was on probation for a September 1984 trafficking offense involving seven ounces of cocaine with a street value of $20,000. While on probation,…
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[*217] PER CURIAM.
The appellant was on probation and subsequently was charged with, and admitted, violating probation by commission of new, substantive offenses. The sentencing guidelines scoresheet shows a range of seven to nine years, the “bump-up” for violation of probation. Instead, the trial judge sentenced him to sixty years’ imprisonment, consisting of two thirty-year consecutive sentences. The trial judge gave the following reasons for departing from the guidelines:
The defendant was on probation for Trafficking in Cocaine and while on this probation committed another Trafficking offense. Based on the facts of both cases, the Court finds the Defendant showed a complete lack of respect for the Criminal Justice System and finds clear and convincing reasons due to these aggravating circumstances to exceed the sentencing guidelines.
The facts which led to the violation of probations show that on April 10, 1986, the defendant sold the Tampa Police Department six (6) ounces of cocaine. The confidential informant met with the defendant prior to April 10,1986 in order to make the arrangements for the buy. The defendant made several statements concerning the good quality of the cocaine. The street value of the 6 ounces of cocaine finally sold was $10,000.00. This delivery occurred while the defendant was on probation for trafficking.
The facts surrounding the original offense of trafficking occurred on September 10, 1984. Pablo Medina set up the delivery of seven ounces of cocaine with the street value of $20,000.00.
IT IS ORDERED AND ADJUDGED that the facts of the instant case and the facts of the probation violation clearly reflects [sic] a pattern of behavior which indicates that the defendant is a menace to society and warrants this court to depart form [sic] the sentencing guidelines because the circumstances are so substantial and compelling as to aggravate the defendant’s sentence.
We are aware of the case of State v. Pentaude, 500 So. 2d 526 (Fla.1987), allowing a departure where a trial judge finds the underlying reasons for violation of probation “sufficiently egregious.” In Pen-taude, the defendant had violated seven conditions of probation, two within the first two months of being on probation, and was convicted of a substantive crime during the probationary period.
We believe the order of departure here does not give clear and convincing underlying reasons to depart within the meaning of Pentaude and cases cited therein. Therefore, we reverse the sentence herein and remand for resentencing within the recommended range of the guidelines.
SCHEB, A.C.J., and SCHOONOVER and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Lambert v. State, 545 So. 2d 838 (Fla. 1989)…conduct. Lambert too was imper-missibly sentenced outside the guidelines where he received a twelve and one-half [*842] year departure for the original offenses based upon conduct for which there was no conviction. In a recent case, Medina v. State, 526 So. 2d 216 (Fla. 2d DCA 1988), the defendant, who was on probation for selling seven ounces of cocaine, violated probation by selling a lesser amount of cocaine. The trial court departed from the guidelines range of seven to nine years and sentenced Medina to…
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Dudley White v. State, 539 So. 2d 1160 (Fla. 1st DCA 1989)…tional and statutory rights. Second, the court imposed a sentence in excess of the guidelines because the defendant committed a similar criminal offense while on probation.1 White con [*1161] tends this reason is not valid based on Medina v. State, 526 So. 2d 216 (Fla. 2d DCA 1988). The state counters that even though the departure in this instance was more than one cell,2 the fact that an offense was committed while the defendant was on probation has been held to be a valid clear and convincing reason for d…
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Sterling v. State, 547 So. 2d 1301 (Fla. 1st DCA 1989)…a drug charge while he was on probation for another drug charge, this, too, is invalid. Lambert v. State, 545 So. 2d 838 (Fla.1989); Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Mooney v. State, 516 So. 2d 333 (Fla. 1st DCA 1987); Medina v. State, 526 So. 2d 216 (Fla. 2d DCA 1988). However, the remaining reason — escalating pattern of criminal activity — is valid under Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA), review denied, 492 So. 2d 1335 (Fla.1986) (escalating pattern of drug-related activities)…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)