JOHN THOMAS JANES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Thomas Janes appealed an order denying his motion to correct an allegedly illegal sentence for trafficking in cocaine and conspiracy convictions. The appellate court affirmed the denial of his motion but remanded to correct a clerical error in the judgment identifying the wrong statutory section for the conspiracy conviction.
The court affirmed the denial of the motion on the merits, finding that conspiracy to traffic in cocaine is a first-degree felony under Florida law and that mandatory penalties may be imposed as part of a guidelines sentence. However, the court remanded for correction of the judgment to reflect the conviction under the proper statutory section (893.135(l)(b)) rather than the incorrectly cited section (893.13).
[1] A conspiracy to traffic cocaine is a first-degree felony under Florida Statutes section 893.135(5).
[2] A mandatory penalty may be imposed as part of a guidelines sentence.
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Join FLexlaw to unlock all legal intelligence“any person who conspires with another person to commit trafficking in cocaine is guilty of a felony of the first degree”
Statutory authority establishing that conspiracy to traffic in cocaine is a first-degree felony, supporting the court's rejection of Janes's scoring argument.
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Join FLexlaw to unlock all legal intelligenceIn 1987, Janes was convicted of trafficking in cocaine and conspiracy to traffic in cocaine and sentenced within the guidelines. His conviction was af…
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JO ANOS, Chief Judge.
The opinion of this court in the above styled case, dated July 11, 1991, is hereby withdrawn, and the following opinion substituted therefor. John Thomas Janes has appealed an order of the trial court denying his motion to correct illegal sentence, filed pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure.1 We affirm, albeit on a different ground than cited by the trial court. However, we remand for correction of the judgment and sentence to indicate, as to Count II of the information, a conviction under section 893.135(l)(b), Florida Statutes.
In 1987, Janes was convicted and sentenced within the guidelines for trafficking in cocaine, and conspiracy to traffic. His conviction was affirmed on appeal, in which no sentencing errors were raised. The instant motion was filed in February 1990, alleging that: 1) the conspiracy charge was incorrectly scored as a first-degree felony, resulting in a higher sentencing range, and 2) the trial court improperly imposed a mandatory minimum term, in that the recommended guidelines sentence exceeded the mandatory sentence. The trial court denied the motion, finding that this court had already addressed the issues on direct appeal.
Contrary to the trial court’s order, Janes did not raise any sentencing errors on direct appeal. We nevertheless affirm, in that denial was appropriate on the merits of the issues raised. See § 893.135(5), Fla.Stat. (1987) (any person who conspires with another person to commit trafficking in cocaine is guilty of a felony of the first degree), and McNair v. State, 540 So. 2d 896, 897 (Fla. 1st DCA 1989) (the rules do not preclude imposition of a mandatory penalty as part of a guidelines sentence).
As to the allegation regarding the charge of conspiracy to traffic, we note appellant’s argument that Count II of the information cites section 893.13 as authority therefor, rather than section 893.135(l)(b). However, given the description of the charge, this was clearly a scrivener’s error. Therefore, we affirm, but remand for correction of the judgment and sentence to indicate conviction, as to Count II, under section 893.135(l)(b).
Affirmed.
WIGGINTON, J., and WENTWORTH, Senior Judge, concur. . In its motion for rehearing, the state alleges that this court erred in disposing of this appeal without first requesting briefing from the state, citing Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986). However, Toler is applicable only in appeals from summary denials of motions for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P. See also Rule 9.140(g), Fla. R.App.P. (no briefing shall be required in appeals from such orders). In appeals from orders denying a Rule 3.800(a) motion, the parties must comply with the procedural requirements applicable to all plenary appeals, including the filing of briefs. Dowling v. State, 545 So. 2d 521, 523 (Fla. 5th DCA 1989). See also Ketion v. State, 548 So. 2d 778, 779 n. 4 (Fla. 1st DCA 1989); McMahon v. State, 567 So. 2d 988 (Fla. 1st DCA 1990). Therefore, the state should not anticipate that this court will delay the disposition of appeals under Rule 3.800(a) in which reversal appears appropriate in order to give the state an opportunity to file an answer brief out of time. The procedure for filing answer briefs already set forth in Rule 9.210, Fla.R.App.P., should be followed in such cases.
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Deran Mosely v. State, 688 So. 2d 999 (Fla. 2d DCA 1997)…nformation properly pleads the necessary elements of the offense. B.H. v. State, 645 So. 2d 987 (Fla.1994), cert, denied, — U.S. —, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995); Danzy v. State, 603 So. 2d 1320 (Fla. 1st DCA 1992). See also Janes v. State, 585 So. 2d 424 (Fla. 1st DCA 1991). Here, the information references a violation of section 810.02(3), Florida Statutes (1993), rather than section 810.02(2)(a). The state correctly points out, however, that the other language in the information alleges all the ne…
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Danzy v. State, 603 So. 2d 1320 (Fla. 1st DCA 1992)…lege all the elements of an offense, such allegations of fact will ordinarily control over an erroneous reference to a statute, so that the reference to section 944.40 in the instant case should be treated as a scrivener’s error. See Janes v. State, 585 So. 2d 424, 425 (Fla. 1st DCA 1991) (where count of information charged conspiracy to traffic cocaine but cited section 893.13 as authority therefor rather than section 893.135(l)(b), which was applicable statute, statutory citation was scrivener’s error given…
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Troyer v. State, 610 So. 2d 530 (Fla. 2d DCA 1992)…ignated in the information heading and the crime depicted in the body of the instrument, the offense described in the body is the one with which the defendant is charged. Keesee v. State, 204 So. 2d 925 (Fla. 4th DCA 1967); see also, Janes v. State, 585 So. 2d 424 (Fla. 1st DCA 1991). Troyer’s conduct, although perhaps prohibited by some other statute, is neither condemned by section 319.33, nor described in the main portion of the information. Although Troyer did not raise the error either at trial or on app…
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
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Dowling v. State, 545 So. 2d 521 (Fla. 5th DCA 1989)
- McNAIR v. State, 540 So. 2d 896 (Fla. 1st DCA 1989)
- Ketion v. State, 548 So. 2d 778 (Fla. 1st DCA 1989)
- McMAHON v. State, 567 So. 2d 988 (Fla. 1st DCA 1990)