FERNANDO BOOM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fernando Boom was convicted of trafficking in cocaine and conspiracy to traffic in cocaine, receiving consecutive 30-year sentences with 15-year minimum mandatory sentences, far exceeding guideline recommendations. The appellate court reversed the sentence due to invalid departure reasons and remanded for resentencing.
The trial court's departure reasons were invalid under established precedent. However, the consecutive minimum mandatory sentences were proper because the conspiracy and trafficking offenses were sufficiently separate in time and place, and the legislature contemplated that both crimes could be punished separately and consecutively.
[1] A trial court may not depart from sentencing guidelines based on the quantity of drugs involved in the offense.
[2] A defendant's post-conviction refusal to cooperate with authorities is an invalid reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“All of the departure reasons are invalid. The trial court relied upon the quantity of drugs, contrary to Atwaters v. State, 519 So.2d 611 (Fla.1988); Boom's post-conviction refusal to cooperate, invalidated by Banzo v. State, 464 So.2d 620 (Fla. 2d DCA 1985); and the presence of his wife and infant child at the scene of the cocaine delivery.”
Establishes that all three sentencing departure reasons were invalid under established precedent
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Join FLexlaw to unlock all legal intelligenceBoom was convicted of trafficking in cocaine and conspiracy to traffic in cocaine. He received consecutive sentences of 30 years with 15-year minimum …
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FRANK, Judge.
The appellant, Fernando Boom, was tried for and convicted of trafficking in cocaine and conspiracy to traffic in cocaine. He received consecutive sentences of thirty years incarceration with a fifteen-year minimum mandatory sentence on each count. The sentences were in excess of the guidelines presumptive range of five and one-half to seven years. Boom raises two points: that the departure reasons were invalid and that the consecutive minimum mandatory sentences are improper. All of the departure reasons are invalid. The trial court relied upon the quantity of drugs, contrary to Atwaters v. State, 519 So. 2d 611 (Fla.1988); Boom’s post-conviction refusal to cooperate, invalidated by Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985); and the presence of his wife and infant child at the scene of the cocaine delivery. The last reason, we note, was condemned in Boom’s codefendant’s appeal. Berrio v. State, 518 So. 2d 979 (Fla. 2d DCA 1988). Despite the state’s urging, we can draw no valid distinction between the present matter and the result reached in Berrio. Because the departure grounds are insufficient, the trial court on remand must conform Boom’s sentence to the prescription of rule 8.701(d)(9) of the Florida Rules of Criminal Procedure, i.e., the mandatory sentences take precedence over the guidelines. Vanover v. State, 498 So. 2d 899 (Fla.1986).
Boom has also challenged the stacking of the minimum mandatory sentences on the ground that his participation in the conspiracy and in trafficking constituted one uninterrupted transaction. Thus, he contends, based upon Palmer v. State, 438 So. 2d 1 (Fla.1983), that the imposition of consecutive minimum mandatory sentences for the same criminal episode is improper. We reject Boom’s argument for the same reasons we relied upon in reversing the sentence imposed upon his codefendant:
Here, the offenses were sufficiently separate in time and place to warrant imposition of separate sentences. The conspiracy was underway long before there was possession of cocaine. The legislature contemplated that both trafficking and conspiracy could be punished severely and could be punished separately. See §§ 893.135, 921.16(1), Fla.Stat. (1985). Therefore, the trial court was justified in the imposition of consecutive mandatory minimum sentences.
Berrio v. State, 518 So. 2d at 981.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESEN-TENCING.
DANAHY, A.C.J., and HALL, J., concur.
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Boom v. State, 574 So. 2d 1213 (Fla. 2d DCA 1991)…THREADGILL, Judge. The appellant was convicted of trafficking in cocaine and conspiracy to traffic in cocaine, both carrying minimum mandatory sentences of fifteen years. Upon remand from a previous appeal, 538 So. 2d 476, the trial court resentenced the appellant to two consecutive fifteen-year minimum mandatory terms. The recommended guidelines range was five and one-half to seven years’ imprisonment. The appellant argues that under Branam v. State, 554 So. 2d 512…
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Russell White Bros. v. State, 577 So. 2d 701 (Fla. 4th DCA 1991)…l 6 and 7 but did not pick up the cocaine until April 8, and he negotiated the second transaction on June 5 or 6 but did not pick up the cocaine until June 7. Thus, the conspiracies were separate and distinct from the trafficking. See Boom v. State, 538 So. 2d 476 (Fla. 2d DCA 1989); Berrio v. State, 518 So. 2d 979 (Fla. 2d DCA 1988). Contra Short v. State, 572 So. 2d 1007 (Fla. 3d DCA 1991). We find no reversible error on the remaining issues. However, we note in passing that we do not consider the merits of…
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Ibarro v. State, 588 So. 2d 334 (Fla. 5th DCA 1991)…icking convictions where the conspiracy is distinct and separate from the trafficking. Brothers v. State, 577 So. 2d 701 (Fla. 4th DCA 1991), cause dis’m., 582 So. 2d 622 (Fla.1991); Berrio v. State, 518 So. 2d 979 (Fla. 2d DCA 1988); Boom v. State, 538 So. 2d 476 (Fla. 2d DCA 1989). Compare, Peoples v. State, 576 So. 2d 783 (Fla. 5th DCA 1991), jurisdiction accepted, 583 So. 2d 1036 (Fla.1991) (consecutive mandatory minimum sentences reversed on conspiracy and trafficking charges where offenses could not be…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)
- Banzo v. State, 464 So. 2d 620 (Fla. 2d DCA 1985)
- Berrio v. State, 518 So. 2d 979 (Fla. 2d DCA 1988)