STATE OF FLORIDA, APPELLANT,
v.
SHAWN D. GLENN, APPELLEE
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The court held that sentencing on both purchase and possession of cocaine was error as possession is a lesser-included offense, and that the trial court erred by not providing written reasons for a downward sentencing departure.
Defendant pleaded guilty to purchasing and possessing cocaine. The trial court imposed a sentence below the recommended guidelines without providing w…
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PER CURIAM.
Defendant was charged by information with one count of purchasing cocaine at or near a school in violation of section 893.-13(l)(e) & (f), Florida Statutes (1987), and one count of possession of cocaine in violation of section 893.03(2)(a)(4), Florida Statutes (1987). He pleaded guilty to both counts and received a sentence which was below the recommended sentencing guidelines. The state seeks review of the trial court’s downward departure from the recommended sentencing guidelines because the trial court gave no written reasons for the departure.
Initially, we reject defendant’s argument that section 893.13(l)(e), Florida Statutes (1987), is unconstitutional. State v. Burch, 545 So. 2d 279 (Fla. 4th DCA 1989).
Defendant also argues that the trial court erred when it sentenced him on both counts. Pursuant to Carawan v. State, 515 So. 2d 161 (Fla.1987), and Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), the offense of possession of cocaine is considered a lesser-included offense of the offense of purchasing the same cocaine at or near a school. Thus the trial court erred in sentencing defendant on both counts.
The state argues that the trial court erred when it failed to provide written reasons for its two-cell downward departure. Defendant concedes this was error. We reverse the sentence on the authority of State v. Richardson, 536 So. 2d 1193 (Fla. 4th DCA 1989). We note that the elimination of the possession conviction will not change defendant’s presumptive sentencing guideline range. Therefore, we remand the sentence with instructions to the trial court to either sentence defendant within the recommended guidelines range, or in the alternative, to reduce to written order the grounds for the proposed two-cell departure as announced orally at the original sentencing. Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985).
DOWNEY, DELL and POLEN, JJ., concur.
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State v. Allen, 557 So. 2d 960 (Fla. 4th DCA 1990)…erse and remand. A trial court is not free to offer a plea bargain which is below the sentencing guidelines and over the objection of the state, unless the trial court provides clear and convincing written reasons for the departure. State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989); State v. Brown, 542 So. 2d 1371 (Fla. 4th DCA 1989); State v. Richardson, 536 So. 2d 1193 (Fla. 4th DCA 1989). The trial court provided no written reasons for its sentencing departure. We reverse and remand to permit the trial…
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Coley v. State, 571 So. 2d 55 (Fla. 4th DCA 1990)…t and sentence for both purchasing cocaine and possessing the same cocaine at or near a school. Possession of cocaine is considered a lesser included offense of the offense of purchasing the same cocaine within 1000 feet of a school. State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989). Both counts cannot stand and on remand, the conviction for possession should be vacated. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. LETTS, POLEN and GARRETT, JJ., concur.…
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Speights v. State, 554 So. 2d 20 (Fla. 1st DCA 1989)…tion); Dame v. State, 547 So. 2d 1038 (Fla. 1st DCA 1989) (affirmed and certified question); Bennett v. State, 546 So. 2d 1192 (Fla. 2d DCA 1989) (affirmed and certified question); Marlow v. State, 545 So. 2d 940 (Fla. 4th DCA 1989); State v. Glenn, 545 So. 2d 903 (Fla. 4th DCA 1989); Lewis v. State, 545 So. 2d 427 (Fla. 2d DCA 1989). Accordingly, we affirm and certify the following question to the Florida Supreme Court: IS SECTION 893.13(l)(e), FLORIDA STATUTES (1987), CONSTITUTIONAL? BOOTH, WIGGINTON a…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- State v. Burch, 545 So. 2d 279 (Fla. 4th DCA 1989)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Richardson, 536 So. 2d 1193 (Fla. 4th DCA 1989)
- Vasco Dagama Thompson v. State, 536 So. 2d 1193 (Fla. 5th DCA 1989)