Montoya v. State

537 So. 2d 629, 14 Fla. L. Weekly 153, 1988 Fla. App. LEXIS 5782, 1988 WL 139090

Opinion

SCHEB, Acting Chief Judge.

Appellant, Maria Montoya, was convicted of trafficking in more than four hundred grams of cocaine and was sentenced to serve thirty years in prison and to pay a $250,000 fine. On appeal, she challenges both her conviction and sentence. We find merit only in Montoya’s sentencing issue.

The trial court departed upward from the minimum mandatory sentence of fifteen years prescribed by section 893.135(1)(b)(3), Florida Statutes (1987), based on the quantity of narcotics involved. This has been held, however, to be an improper reason to depart. Atwaters v. State, 519 So.2d 611 (Fla.1988); Restrepo v. State, 533 So.2d 1180 (Fla. 2d DCA 1988). Accordingly, we affirm Montoya’s conviction but remand to the trial court for resentencing within the recommended guidelines range with the sentence to be no less than that required by section 893.135(1)(b)(3).

THREADGILL and PARKER, JJ., concur.