Usquiano v. State

540 So. 2d 172, 14 Fla. L. Weekly 709, 1989 Fla. App. LEXIS 1392, 1989 WL 23503

• Court: District Court of Appeal of Florida
• Decided: March 15, 1989
• Docket: No. 87-2925
• Status: Published

Opinion

DANAHY, Acting Chief Judge.

The appellant, Luis Fernando Usquiano, was convicted of trafficking in more than 400 grams of cocaine, and was sentenced to serve thirty-years in prison and to pay a $250,000 fine. On appeal, the appellant challenges both his conviction and sentence. We find merit only in the appellant's sentencing issue and remand to the trial court on that issue alone. We find no merit in the appellant’s other contentions and, accordingly, affirm the appellant’s conviction.

In sentencing the appellant, the trial court departed from the minimum mandatory sentence of fifteen years (section 893.-135(1)(b)(3), Florida Statutes (1987)), and sentenced the appellant to serve thirty years in prison. The court gave the following written reasons to depart:

As the legislature has determined that one found guilty of trafficking in 400 grams of cocaine should be imprisoned for 15 years, what should the appropriate sentence be for one convicted of trafficking in 22 times 400? To suggest that the sentence should be the same is an affront to justice. Justice demands that one convicted of trafficking in 8898 grams of cocaine receive a greater punishment than one convicted in trafficking in 4½% of that amount.

The trial court thus clearly departed because of the greater amount of narcotics involved in the crime. This is improper under Atwaters v. State, 519 So.2d 611 (Fla.1988). See also Restrepo v. State, 533 So.2d 1180 (Fla. 2d DCA 1988). We therefore vacate the appellant’s sentence and remand to the trial court for resentencing within the guidelines range.

LEHAN and PARKER, JJ., concur.