JAMALE REAVES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jamale Reaves appeals his sentencing to 7 years imprisonment for drug trafficking, arguing the trial court improperly considered conduct for which he was acquitted. The Third District Court of Appeal dismisses the appeal for lack of jurisdiction because the sentence falls within the permitted sentencing guidelines and is therefore not reviewable.
The court dismisses the appeal, holding that a sentence within the permitted sentencing guidelines is not reviewable and therefore not appealable. Even if jurisdiction existed, the trial court properly considered the proximity of the firearm to the drug supply as a non-punitive factor in selecting the sentence within the permitted range, and this did not constitute punishment for acquitted conduct.
[1] A sentence falling within the sentencing guidelines is not reviewable on appeal.
[2] A trial court may consider evidence related to acquitted conduct when imposing a sentence, provided the sentence remains within the statutory guidelines.
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Join FLexlaw to unlock all legal intelligence“This court has held that a sentence falling within the sentencing guidelines is not reviewable.”
Establishes the jurisdictional rule that makes the appeal non-appealable
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Join FLexlaw to unlock all legal intelligenceReaves was convicted of trafficking in cocaine and sale/purchase/delivery of cocaine. He was acquitted of armed trafficking after the trial court gran…
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On Motion for Rehearing
COPE, Judge.
Upon consideration of defendant-appellant’s motion for rehearing, we withdraw the opinion dated August 2, 1994, and substitute the following opinion:
Jamale Reaves appeals an order sentencing him to imprisonment within the permitted range of the sentencing guidelines. We dismiss the appeal for want of an appealable order. Defendant was found guilty of trafficking in cocaine, and the sale, purchase, or delivery of cocaine. Under defendant’s scoresheet, the permitted range was 3½ to 7 years. The trial court imposed a 7-year sentence. Defendant has appealed, arguing that in deciding to sentence him at the top of the permitted range, the court took into account conduct of which defendant had been acquitted.
This court has held that a sentence falling within the sentencing guidelines is not reviewable. Preston v. State, 641 So. 2d 169, 171 (Fla. 3d DCA 1994); Gonzalez v. State, 616 So. 2d 71, 72 (Fla. 3d DCA 1993); Panek v. State, 593 So. 2d 307 (Fla. 3d DCA 1992); see also §§ 921.001(5), 924.06(l)(e), Fla.Stat. (1993). Defendant asserts that his position is supported by Reese v. State, 639 So. 2d 1067 (Fla. 4th DCA 1994). We disagree. There is no indication in Reese that the sentence was within the guidelines, and the decision contains no discussion of the jurisdictional point raised by the State in the present case.1 We likewise distinguish Cook v. State, 647 So. 2d 1066 (Fla. 3d DCA 1994), in which the jurisdictional issue was not raised. In the present case, the State has raised the objection that the within-guidelines sentencing order is not appealable, and we conclude that the point is well taken.
Assuming for purposes of discussion that we did have jurisdiction to consider the point, defendant’s argument on appeal is entirely without merit. Defendant was observed selling drugs and was prosecuted. Defendant had concealed his cocaine supply inside a cement block near the street. Two or three feet away from the cement block, the officers found a bag containing a nine-millimeter firearm. Because of the firearm, defendant was charged with armed trafficking.
At trial defendant moved for judgment of acquittal as to the armed trafficking charge, arguing that the defendant did not use the firearm nor have it in his physical possession at any time during the drug sales observed by the police officers. The trial judge granted a judgment of acquittal as to the charge of armed trafficking and allowed the case to go to the jury on the lesser included charge of trafficking, along with the charge of sale, purchase, or delivery of cocaine.2 Defendant was convicted of both charges.
At sentencing the trial judge noted in substance that although the evidence was legally insufficient to go to the jury on the charge of armed trafficking, the evidence supported the inference that the firearm found in close proximity to defendant’s drug supply was defendant’s firearm. For that and other reasons, the trial judge decided to sentence the defendant at the upper end of the permitted range. Contrary to defendant’s argument, the trial court’s reasoning on this point was entirely permissible. Defendant was not penalized for acquitted conduct.
Appeal dismissed.
. If Reese involved a departure sentence, then the sentencing order was appealable. See §§ 921.001(5), 924.06(l)(e), Fla.Stat. (1993).
. We express no opinion on the merits of the granting of the partial judgment of acquittal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shon Evans v. State, 816 So. 2d 742 (Fla. 4th DCA 2002)…cocaine, trial court was permitted to consider that defendant had a “substantial” and “more than street level” amount of narcotics even though defendant had been acquitted on charge of trafficking in more than 200 grams of cocaine); Reaves v. State, 655 So. 2d 1189 (Fla. 3d DCA 1995)(stating that in sentencing defendant for trafficking in cocaine, trial court was permitted to consider that defendant kept a dangerous firearm in close proximity to his drug cache even though the defendant had been acquitted of ar…
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Dedric Gardner v. State, 699 So. 2d 798 (Fla. 4th DCA 1997)…ial court’s sentence was within the permitted sentencing guideline range, we affirm as to appellant’s claim of judicial vindictiveness. See Melton v. State, 678 So. 2d 434 (Fla.App. 1st DCA), rev. denied, 687 So. 2d 1304 (Fla.1996); Reaves v. State, 655 So. 2d 1189 (Fla. 3d DCA 1995); Panek v. State, 593 So. 2d 307 (Fla. 3d DCA 1992); § 924.06(1)(e), Fla. Stat. (1995). We believe that the record neither supported an inference of the judge’s vindictiveness nor indicated that he gave any improper weight to appel…
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Bucknor v. State, 965 So. 2d 1200 (Fla. 4th DCA 2007)…v. State, 884 So. 2d 547 (Fla. 4th DCA 2004) (on reh'g); [*1204] Dowling v. State, 829 So. 2d 368 (Fla. 4th DCA 2002); Howard v. State, 820 So. 2d 337 (Fla. 4th DCA 2002); Evans v. State, 816 So. 2d 742 (Fla. 4th DCA 2002); but see Reaves v. State, 655 So. 2d 1189 (Fla. 3d DCA 1995).…
Authorities Cited
- Reese v. State, 639 So. 2d 1067 (Fla. 4th DCA 1994)
- Cook v. State, 647 So. 2d 1066 (Fla. 3d DCA 1994)
- Preston v. State, 641 So. 2d 169 (Fla. 3d DCA 1994)
- Panek v. State, 593 So. 2d 307 (Fla. 3d DCA 1992)
- Alphonse Addonisio v. The Dial Corp. & Fla. Supermarkets, Inc., 616 So. 2d 71 (Fla. 3d DCA 1993)