TERRANCE DUBOSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terrance DuBose was convicted on seven drug and racketeering offenses and challenges his sentencing. The appellate court reversed his sentences because the trial court improperly included points for two possession counts on the sentencing guidelines scoresheet, as those convictions were legally invalid under Carawan v. State.
The trial court erred by including points for the two possession counts on the guidelines scoresheet because those convictions were invalid under Carawan v. State. DuBose's sentences are reversed and remanded for resentencing with a properly prepared scoresheet, while all other aspects of the judgment are affirmed.
[1] A trial court errs in calculating a defendant's guidelines scoresheet by including points for offenses that have been deemed invalid.
[2] A conviction for possession with intent to deliver is invalid when the defendant is also convicted of the sale of the same controlled substance.
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“the trial court included points for the two counts of possession with intent to deliver. According to Carawan v. State, 515 So.2d 161 (Fla.1987), the convictions for possession were invalid.”
Establishes the core error that possession convictions could not be used for sentencing guidelines when sale convictions on the same drug also existed.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn June 11, 1986, DuBose was charged with conspiracy to traffic heroin and cocaine, trafficking in illegal drugs, possession of cocaine and heroin wit…
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PER CURIAM.
Appellant, Terrance Dubose, challenges the judgments and sentences imposed against him. We find that the trial court erred in sentencing the appellant and, accordingly, reverse and remand for resentencing.
On June 11, 1986, appellant was charged with conspiracy to traffic in heroin (count I), conspiracy to traffic in cocaine (count II), trafficking in illegal drugs (count III), possession of cocaine with intent to deliver (count IV), possession of heroin with intent to deliver (count V), trafficking in cocaine (count VI), and racketeering (count VII). The jury found him guilty on all counts.
The trial court sentenced appellant to the ten year minimum mandatory on count I. On count III, appellant was sentenced to the ten year minimum mandatory to run concurrently to count I. The trial court did not sentence appellant for the possession counts, counts IV and V. The trial court imposed three nine year sentences for the remaining counts, counts II, VI, and VII, to run concurrently with count I.
We agree with appellant’s contention that the trial court erred by including points on the guidelines scoresheet for the two possession counts (counts IV and V). We disagree with appellant’s remaining contentions. In calculating the presumptive guidelines range, the trial court included points for the two counts of possession with intent to deliver. According to Carawan v. State, 515 So. 2d 161 (Fla.1987), the convictions for possession were invalid. See also Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988) (improper to convict defendant of both sale of cocaine and possession with intent to sell). Thus, pursuant to Florida Rule of Criminal Procedure 3.701(d)(4), the offenses for possession with intent to deliver should not have been included on the seoresheet. Carawan had been decided by the time of sentencing and the trial court should have applied it. Inglis v. State, 547 So. 2d 702 (Fla. 5th DCA 1989).
Appellant did not object to the seoresheet at sentencing. However, this issue has been held to be fundamental, and therefore, we may consider it. Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1989).
We find the trial court erred in scoring points for the two possessions. We remand so that appellant may be resentenced with a properly prepared seoresheet. We affirm in all other respects.
SCHOONOVER, C.J., and DANAHY and FRANK, JJ., concur.
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Citator
Cited By
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Shon Glynn Mills v. State, 723 So. 2d 363 (Fla. 1st DCA 1998)…64 (Fla. 1st DCA 1997); but see Gayton, Case No. 97-3672, 725 So. 2d at 1180 (holding scoresheet error resulting in increased maximum sentence cognizable on direct appeal notwithstanding the absence of objection at the trial level); Dubose v. State, 566 So. 2d 592 (Fla. 2d DCA 1990) (holding scoresheet error attributable to double jeopardy violation cognizable on direct appeal notwithstanding the absence of objection at the trial level). We see no basis for deeming the scoresheet error fundamental here. Unde…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Marion v. State, 526 So. 2d 1077 (Fla. 2d DCA 1988)
- Bernardin Inglis v. State, 547 So. 2d 702 (Fla. 5th DCA 1989)