MANUEL ENRIQUE LOZANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Manuel Enrique Lozano appealed his drug trafficking convictions and sentences, arguing that convictions for trafficking and possession arising from the same cocaine violated double jeopardy protections, and that the trial court improperly imposed an above-guidelines sentence. The appellate court agreed on both points and vacated the possession conviction while remanding for resentencing within guidelines.
The court held that the trafficking and possession convictions arising from the same cocaine violate double jeopardy, requiring reversal of one conviction. The court also held that the trial judge erred in departing upward from guidelines because the prior 1971 conviction was already scored as prior record and the judge's perception that guidelines sentences were insufficient for rehabilitation is not a valid departure reason.
[1] Convictions and sentences for trafficking and possession arising from the same act involving the same controlled substance violate the constitutional guarantee against do…
[2] A prior conviction, when scored as prior record, cannot be used as a basis for upward 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“Since these convictions and sentences arose from the same act involving the same cocaine, one conviction must be reversed.”
Establishes the double jeopardy violation requiring reversal of the possession conviction
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Join FLexlaw to unlock all legal intelligenceLozano was convicted of multiple drug offenses including trafficking cocaine (count I) and possession of cocaine (count III), both arising from the sa…
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SCHEB, Judge.
The defendant, Manuel Enrique Lo-zano, appeals his convictions and sentences for several drug offenses. He raises two points. First, he contends that his convictions and sentences for trafficking under count I and possession under count III violate the constitutional guarantee against double jeopardy. The defendant is correct. Since these convictions and sentences arose from the same act involving the same cocaine, one conviction must be reversed. Carawan v. State, 515 So. 2d 161 (Fla.1987); Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988).
Second, the defendant argues that the court erred in departing from the recommended sentencing guidelines range. Again, the defendant is correct. The trial judge departed upward from the recommended guidelines range and sentenced the defendant to fifteen years imprisonment with a five-year mandatory minimum. In justifying the departure, the trial judge recited that a 1971 sentence imposed for selling heroin had not deterred the defendant from his continuing involvement with controlled substances. The trial court determined that these circumstances demanded a longer sentence than that previously imposed. In effect, the court found that the previous sentence had not rehabilitated the defendant. Because the 1971 conviction was scored as prior record, the trial judge erred in relying on it as a reason for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Furthermore, the judge’s perception that a recommended guidelines sentence is insufficient to rehabilitate a defendant is not a valid reason for upward departure. Baker v. State, 517 So. 2d 753 (Fla. 2d DCA 1987).
Accordingly, we vacate the defendant’s conviction for possession of cocaine under count III and remand for resentencing. We affirm the defendant’s convictions in all other respects. Before resentencing, a new scoresheet shall be prepared to eliminate the points scored for conviction for count III. The trial court shall resentence the defendant within the recommended guidelines range, Shull v. Dugger, 515 So. 2d 748 (Fla.1987), with imposition of the mandatory five year minimum sentence.
CAMPBELL, C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Adolf Alvin Mincey v. State, 563 So. 2d 811 (Fla. 2d DCA 1990)…ntention that the court improperly departed from the guidelines when sentencing him. All of the reasons given by the trial court to support an upward departure from the guidelines were either invalid, or not supported by the record. Lozano v. State, 540 So. 2d 131 (Fla. 2d DCA 1989); Nodal v. State, 524 So. 2d 476 (Fla. 2d DCA 1988); Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987). We, accordingly, reverse and remand for the purpose of vacating one of the appellant’s convictions in each case and after…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Baker v. State, 517 So. 2d 753 (Fla. 2d DCA 1987)