ORLANDO HERRERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Orlando Herrera was convicted of trafficking in cocaine and obstructing an officer without violence. The court affirmed his conviction but reversed his sentence because the trial court imposed a consecutive one-year sentence for the misdemeanor outside the sentencing guidelines without written reasons for departure.
The court affirmed Herrera's conviction on all charges and the fifteen-year mandatory minimum sentence for the felony. However, the court reversed the additional one-year consecutive sentence imposed on the misdemeanor because it violated sentencing guidelines by departing from the guidelines without written reasons.
[1] A trial court does not err in instructing the jury with the standard instruction on entrapment when applicable.
[2] A trial court's sentencing outside of the guidelines requires written reasons for departure, even when a statutorily mandated minimum sentence applies.
Previewing 2 of 5 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 appellant's fifteen year sentence was a statutorily mandated minimum in excess of the sentencing guidelines. However, it was error to additionally sentence appellant outside of the guidelines by the consecutive one year sentence on the misdemeanor charge, without written reasons for departure.”
Establishes the core holding that the mandatory minimum for the felony was proper but the consecutive misdemeanor sentence violated sentencing guidelines due to lack of written reasons.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHerrera was convicted of trafficking in cocaine (a felony) and obstructing an officer without violence (a misdemeanor). He was sentenced to fifteen ye…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Obstructing an Officer cases and more on FLexlaw
STONE, Judge.
The appellant was convicted of trafficking in cocaine and of obstructing an officer without violence, a misdemeanor. He was sentenced to fifteen years on the felony charge and one year, to be served consecutively, on the misdemeanor. We affirm appellant’s conviction but reverse the sentence.
Initially, we find no error in the trial court’s instructing the jury with the relatively new standard instruction on entrapment. Krajewski v. State, 16 F.L.W. 692 (Fla. 4th DCA March 13, 1991); Gonzalez v. State, 571 So. 2d 1346 (Fla. 3d DCA 1990). See also § 777.201(2), Fla.Stat. (1987); In re Standard Jury Instr. in Criminal Cases, 543 So. 2d 1205 (Fla.1989).
We also find no error as to the additional issue concerning jury selection. See, e.g., Reed v. State, 560 So. 2d 203 (Fla.), cert. denied, — U.S. -, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990).
The appellant’s fifteen year sentence was a statutorily mandated minimum in excess of the sentencing guidelines. However, it was error to additionally sentence appellant outside of the guidelines by the consecutive one year sentence on the misdemeanor charge, without written reasons for departure. The scoresheet must include all offenses pending before the court for sentencing notwithstanding that the mandatory portion of the sentence takes precedence over the guideline sentence. 3.701(d)(1) and (9), Fla.R.Crim.P. A court may not disregard the guidelines as to any portion of the sentence other than to the extent otherwise authorized for the mandatory minimum portion of the sentence or a departure for written reasons.
Therefore, the sentence is reversed. In all other respects, the judgment is affirmed. We remand for resentencing.
LETTS and DELL, JJ., concur. BY ORDER OF THE COURT:
ORDER OF CERTIFICATION
ORDERED that appellant’s May 13, 1991 motion for certification is granted. Recognizing that Krajewski v. State is presently pending in the Supreme Court on a certified question relevant to this appeal, we additionally certify the following question:
Do Instruction 3.04(c)(2), Florida Standard Jury Instructions in Criminal Cases, and Section 777.201(2), Florida Statutes (1989), both applicable to offenses after 1987, unconstitutionally shift the burden to the defense to prove entrapment?
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Herrera v. State, 594 So. 2d 275 (Fla. 1992)…McDonald, justice. In Herrera v. State, 580 So. 2d 653, 654 (Fla. 4th DCA 1991), the district court certified the following question as being of great public importance: Do Instruction 3.04(c)(2), Florida Standard Jury Instructions in Criminal Cases, and Section 777.201(2), Florida Statutes (1989), bot…
-
Vazquez v. State, 700 So. 2d 5 (Fla. 4th DCA 1997)…shall be acquitted if he proves by a preponderance of the evidence that his criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.” § 777.201, Fla. Stat. (1995). . See Herrera v. State, 580 So. 2d 653, 654 (Fla. 4th DCA 1991). [*12] "2 Inducement is not at issue' in this case. The Government does not dispute that it induced petitioner to commit the crime. The sole issue is whether the Government carried its burden of proving that petitioner was p…
-
Strickland v. State, 588 So. 2d 269 (Fla. 4th DCA 1991)…right to due process of law is violated by placing upon him the burden of proof on the defense of entrapment as required by section 777.201, Florida Statutes (1989) and the Florida Standard Jury Instructions for Criminal Cases. See Herrera v. State, 580 So. 2d 653 (Fla. 4th DCA 1991); Krajewski v. State, 587 So. 2d 1175, (Fla. 4th DCA 1991). See also Gonzalez v. State, 571 So. 2d 1346 (Fla. 3d DCA 1990), rev. denied 584 So. 2d 998 (Fla.1991). We reject appellant's due process claim as to the burden of proof o…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grover Reed v. State, 560 So. 2d 203 (Fla. 1990)
- In re Standard Jury Instructions in Criminal Cases, 543 So. 2d 1205 (Fla. 1989)
- Gonzalez v. State, 571 So. 2d 1346 (Fla. 3d DCA 1990)