Graham v. State

608 So. 2d 123, 1992 Fla. App. LEXIS 11366, 1992 WL 317852

Opinion

ALTENBERND, Judge.

We affirm the defendant’s judgment and sentence for purchase of cocaine within 1000 feet of a school. We note that the trial court imposed a lawful sentence of five years’ incarceration, including a thrée-year minimum mandatory term. At the time the trial court imposed this mandatory minimum term, it believed it had no discretion to do otherwise. Now it is clear that the trial court had discretion to impose a sentence that did not include the mandatory minimum term. See Scates v. State, 603 So.2d 504 (Fla.1992).

Although we affirm this lawful sentence, we note that the trial court has the authority to reduce or modify this sentence for a period of sixty days following the issuance of our mandate. Fla.R.Crim.P. 3.800(b). This case is apparently the defendant’s first drug conviction. An undercover police officer selected the location for this sale, an apartment complex that happened to be approximately 650 feet from a private' school. The transaction took place on a Friday night at 11:30 p.m. Thus, it is possible that the trial court may now wish to exercise the discretion that it did not realize it had at the sentencing hearing.

Affirmed.

LEHAN, C.J., and PATTERSON, J„ concur.