Benitez v. State

470 So. 2d 734, 10 Fla. L. Weekly 1175

• Court: District Court of Appeal of Florida
• Decided: May 10, 1985
• Docket: 84-1276
• Status: Published

Opinion

470 So.2d 734 (1985)

Daniel BENITEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 84-1276.

District Court of Appeal of Florida, Second District.

May 10, 1985. Rehearing Denied June 13, 1985.

James Marion Moorman, Public Defender, and David Dwiggins, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

Defendant was adjudicated guilty of trafficking in cocaine and carrying a concealed firearm in violation of sections 893.135 and 790.01(2), Florida Statutes (1983). The trial court sentenced him to thirty years imprisonment with a fifteen-year mandatory sentence and a $250,000 fine on the trafficking conviction and imposed a concurrent five-year sentence on his conviction for carrying a concealed firearm.

Defendant contends that it is unclear whether the trial court imposed a guidelines or nonguidelines sentence. If the sentence was imposed under the guidelines, defendant contends that the court erred in departing from the recommended sentence.

The record reveals that defendant elected, in writing, to be sentenced under the guidelines as was his privilege, since the offense for which he was prosecuted occurred prior to October 1, 1983. See In re Rules of Criminal Procedure, 439 So.2d 848, 849 (Fla. 1983). The record discloses that the trial court sentenced defendant under the guidelines after reviewing the scoresheet. Further, the record shows that the trial judge articulated clear and convincing reasons for his departure from the guidelines: the amount of cocaine involved and the use and involvement of a weapon. See Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984); Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). The sentences imposed are permitted under sections 893.135(1)(b)(3) and 775.082(3)(d), Florida Statutes (1983).

Accordingly, we find no merit to defendant's contentions and affirm his convictions and sentences.

RYDER, C.J., and HALL, J., concur.