JOSEPH D'ANGELO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's double jeopardy challenge to his cocaine trafficking conviction was rejected, but his departure sentence was reversed because two of the three grounds for departure were invalid and the court could not conclude the judge would have imposed the same sentence without them.
A departure sentence based partly on invalid grounds must be reversed and remanded for resentencing when the appellate court cannot conclude beyond a reasonable doubt that the trial judge would have imposed the same sentence absent those invalid grounds.
[1] When a departure sentence is based on multiple grounds and some are invalid, the sentence must be reversed if the appellate court cannot conclude beyond a reasonable doub…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of trafficking in cocaine after a mistrial was declared in his first trial based on his own motion. The trial court imposed a …
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DOWNEY, Judge.
Appellant seeks reversal of his conviction and sentence for trafficking in cocaine. He attacks his conviction on double jeopardy grounds, which we reject. The mistrial declared in his first trial was based upon appellant’s motion therefor and has not been shown to be the result of prosecutorial misconduct.
The departure sentence imposed was based upon three grounds, two of which were invalid, ie., the quantity of drugs involved, Pastor v. State, 521 So. 2d 1079 (Fla.1988), and the effect of the distribution of large amounts of drugs on society, Platt v. State, 515 So. 2d 1068 (Fla. 4th DCA 1987). The third ground, that the crime was committed in a well organized and professional manner, is a valid reason for departure. Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987). However, we are unable to conclude beyond a reasonable doubt that the trial judge would have imposed the same sentence absent the two invalid grounds as required by Albritton v. State, 476 So. 2d 158 (Fla. 4th DCA 1985), which decision is applicable to this case as the crime predates the 1987 amendment in Chapter 87-110 to section 921.001(5), Florida Statutes. State v. McGriff, 537 So. 2d 107 (Fla.1989.)
Accordingly, we affirm the conviction and reverse the sentence, and remand the cause for resentencing as the trial court may be advised.
DELL and WARNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)…PER CURIAM. Pursuant to article V, section 3(b)(3) of the Florida Constitution, we accepted jurisdiction to review D’Angelo v. State, 541 So. 2d 706 (Fla. 4th DCA 1989), because of its conflict with Collins v. State, 535 So. 2d 661 (Fla. 3d DCA 1988). The issue is whether the finding that “the crime was committed in a well-organized and professional manner” is a valid reason for departure from t…
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Hernandez v. State, 575 So. 2d 640 (Fla. 1991)…we find that our decision today would be the same whether the burden is "clear and convincing" or a mere "preponderance.” . Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989); Rivera v. State, 543 So. 2d 441 (Fla.3d DCA 1989); D’Angelo v. State, 541 So. 2d 706 (Fla. 4th DCA 1989); Stowers v. State, 541 So. 2d 715 (Fla. 1st DCA), review denied, 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…
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…ins, the state agreed that the professional manner in which the crime was com [*40] mitted was an invalid reason for departure. Accord Rivera v. State, 543 So. 2d 441 (Fla. 3d DCA 1989). On the other hand, the Fourth District, in D’Angelo v. State, 541 So. 2d 706 (Fla. 4th DCA 1989), approved departure based on the professional manner in which a crime is committed. D’Angelo also concerned cocaine trafficking, as does Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987), cited by the D’Angelo court and the tria…
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
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- Young v. State, 502 So. 2d 1347 (Fla. 2d DCA 1987)
- Platt v. State, 515 So. 2d 1068 (Fla. 4th DCA 1987)
- Pastor v. State, 521 So. 2d 1079 (Fla. 1988)