Gemmell v. State

District Court of Appeal of Florida

Gemmell v. State

403 So. 2d 629, 1981 Fla. App. LEXIS 21078

District Court of Appeal of Florida·Decided September 18, 1981·No. No. 81-287·Published·Cited by 1 cases

Opinion

PER CURIAM.

After granting the state attorney’s motion to mitigate appellant’s sentence on a charge of trafficking in cocaine pursuant to section 893.135(3), Florida Statutes (1979), the trial judge sentenced appellant to three years incarceration to be followed by twelve years probation. Appellant now appeals his sentence claiming that the trial judge erred in refusing to hear additional mitigating evidence offered by the defense and also claiming that section 893.135 is unconstitutional.

Because we find appellant’s points on appeal to have no merit, appellant’s conviction is affirmed.

Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, Acting C. J., and RYDER and CAMPBELL, JJ., concur.

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PER CURIAM.

After granting the state attorney’s motion to mitigate appellant’s sentence on a charge of trafficking in cocaine pursuant to section 893.135(3), Florida Statutes (1979), the trial judge sentenced appellant to three years incarceration to be followed by twelve years probation. Appellant now appeals his sentence claiming that the trial judge erred in refusing to hear additional mitigating evidence offered by the defense and also claiming that section 893.135 is unconstitutional.

Because we find appellant’s points on appeal to have no merit, appellant’s conviction is affirmed.

Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, Acting C. J., and RYDER and CAMPBELL, JJ., concur.

Gemmell v. State, 403 So. 2d 629, 1981 Fla. App. LEXIS 21078 (Fla. Ct. App. 1981).

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Opinion

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