WILLIAM VARELA, REBECCA CHERRY, RUBEN HUGHES AND DOUGLAS KUDELKA, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Four defendants appealed their convictions for racketeering, conspiracy, and trafficking in an interstate cocaine distribution scheme. The court affirmed the convictions but reversed the sentences, finding the trial judge improperly departed from sentencing guidelines based on invalid grounds such as the amount of money and drugs involved.
The court held that the trial court improperly departed from sentencing guidelines. While sophistication of offense might be valid in some contexts, it is not a proper departure ground for RICO violations where such sophistication is inherent to the crime. The amount of money and drugs involved are invalid departure grounds. The sentences were reversed and the case remanded for resentencing within the applicable guideline range.
[1] The sophistication of an offense is not a proper ground for deviating from a presumptive sentence under the guidelines.
[2] The amount of money involved in an offense is not a valid ground for departing from the presumptive sentence.
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 only arguably valid basis for departure is the "sophistication of the offense." In spite of the professional manner in which the crime was committed, it is not a proper ground for deviation from the presumptive sentence.”
Establishes that sophistication is not a valid departure ground even when crime is professionally executed
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellants were convicted of participating in an interstate cocaine distribution ring. The evidence showed cocaine was transported in kilos from Tampa…
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FRANK, Judge.
The appellants appeal from convictions for racketeering, conspiracy, and trafficking arising out of their participation in an interstate cocaine distribution scheme. We have carefully considered each contention raised by the appellants. The only meritorious point concerns the sentences,
The trial court entered a written order justifying deviation from the guidelines recommended sentences based upon “the facts of the case, due to the amount of money involved and the sophistication of the offense, because of the amount of drugs involved and the effects of this cocaine distribution ring upon the community.” The only arguably valid basis for departure is the “sophistication of the offense.” In spite of the professional manner in which the crime was committed, it is not a proper ground for deviation from the presumptive sentence. See Hoyte v. State, 518 So. 2d 975 (Fla. 2d DCA 1988); Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987), and Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985). The cases following that reasoning do not involve RICO violations which by their nature implicate an unusual degree of sophistication owing to the necessity of proving that the defendant engaged in certain underlying predicate acts in fulfilling the unlawful objectives of an enterprise. A further look at the court’s written order also persuades us that the terminology “sophistication of the offense” was based almost entirely upon the amount of money and drugs involved, both of which have been held invalid departure grounds. Atwaters v. State, 519 So. 2d 611 (Fla.1988); State v. Mischler, 488 So. 2d 523 (Fla.1986). The sentencing judge stated:
The evidence produced at trial showed that the cocaine ring was a highly sophisticated one in that kilos of cocaine would be transported from Tampa to Houston. Monies for the cocaine involved thousands of dollars and both Rebecca Cherry and Ruben Hughes were involved in transporting money between Tampa and Houston. The testimony showed that Mr. Kudelka was a money partner of one of the main distributors of cocaine in Houston. Mr. Varela was a cocaine dealer in Tampa, who was dealing approximately 20 ounces of cocaine on a weekly basis during the tenancy of the investigation.
Unlike the situation in Hoyte, in which the defendant was convicted of possession of twenty-one pounds of cannabis that had been professionally packaged, here there are no specific facts suggesting that this operation was more professional than any other of this type for which the defendants would be subject to RICO convictions, and we cannot approve this ground for departure.
Accordingly, we reverse the sentences and remand for resentencing within the applicable guideline range for each defend ant. Shull v. Dugger, 515 So. 2d 748 (Fla. 1987). The convictions are affirmed.
DANAHY, A.C.J., and LEHAN, J., concur.
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Hernandez v. State, 575 So. 2d 640 (Fla. 1991)…, 548 So. 2d 663 (Fla.1989); Collins v. State, 535 So. 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…
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Hernandez v. State, 538 So. 2d 137 (Fla. 3d DCA 1989)…tion on the substantive offense of trafficking in cocaine, the conviction on Hernandez’s probation violation case which was based upon the substantive trafficking offense is also affirmed. Finally, the state acknowledges that under Varela v. State, 530 So. 2d 960 (Fla. 2d DCA 1988) and Atwater v. State, 519 So. 2d 611 (Fla.1988), the trial court erred in basing its guidelines departure upon the quantity and quality of drugs. Accordingly the case is reversed as to the sentence on the substantive case which ex…
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Varela v. State, 550 So. 2d 40 (Fla. 2d DCA 1989)…SCHOONOVER, Judge. The appellant, William Varela, challenges the sentences imposed upon him after this court reversed his original sentences in Varela v. State, 530 So. 2d 960 (Fla. 2d DCA 1988). Except for the imposition of certain costs, we find no merit in any of his contentions and, accordingly, affirm. We agree, however, that the trial court erred by requiring the appellant to pay $5000 for the cost of prosecution an…
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987)
- Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985)
- Hoyte v. State, 518 So. 2d 975 (Fla. 2d DCA 1988)