Stidham v. State

579 So. 2d 319, 1991 Fla. App. LEXIS 4163, 1991 WL 72086

Opinion

COBB, Judge.

The defendant, Edward Ray Stidham, was charged and convicted of conspiracy to traffic in cocaine pursuant to section 893.-135, Florida Statutes (1989) and of transporting funds with the intent to purchase cocaine. § 896.101(2)(b)l, Fla.Stat. (1989).

Stidham was sentenced to five years in the Department of Corrections with an additional fine of $50,000.00 under the conspiracy count. Under “Special Provisions,” the court imposed the five-year minimum provisions of section 893.135(1).¹ As to transporting funds, the defendant was sentenced to five years to be served concurrently with the conspiracy count.

After careful consideration of the record and the arguments presented, we affirm the judgment but are cognizant of the fact that the written judgment filed in open court on June 8, 1990, should also list section 893.135(5).² Without the additional statute listed, the judgment appears to be for trafficking in cocaine not conspiracy to traffic in cocaine. Additionally, this court takes note of the clerical error contained within the written sentence wherein the trial court sentenced the defendant to a five-year mandatory minimum term instead of the correct mandatory minimum term of three years which the judgment mandates. § 893.135(l)(b)l., Fla.Stat. (1989). Accordingly, we remand so that the trial court may correct and amend the judgment and sentence.

AFFIRMED AND REMANDED.

DAUKSCH and COWART, JJ., concur.

1 . Section 893.135(l)(b) states in pertinent part: Any person who knowingly sells, purchases, manufactures, delivers, or brings into the state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine as described in section 893.03(2)(a)4. or of any mixture containing cocaine is guilty of a felony of the first degree, which felony shall be known as trafficking in cocaine. If the quantity involved:

1. Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $50,000.00.

2. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 5 calendar years and to pay a fine of $100,000.00.

2 . The defendant was not charged under the general conspiracy statute, section 777.04, and as such, section 893.135(5) would need to be included in the written judgment. See Jenkins v. State, 533 So.2d 297 (Fla. 1st DCA 1988), review denied, 542 So.2d 1334 (Fla.1989); State v. Niemcow, 505 So.2d 670 (Fla. 5th DCA 1987).