Atwaters v. State

• Decision Date: 15 October 1986
• Docket Number: No. BH-297,BH-297
• Citation: 11 Fla. L. Weekly 2187,495 So.2d 1219
• Parties: 11 Fla. L. Weekly 2187 Donald Jerome ATWATERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1219

495 So.2d 1219

11 Fla. L. Weekly 2187

Donald Jerome ATWATERS, Appellant, v. STATE of Florida, Appellee.

No. BH-297.

District Court of Appeal of Florida First District.

Oct. 15, 1986.

Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.

WIGGINTON, Judge.

Appellant appeals a sentencing order, in which the trial judge departed from the recommended guidelines range of four and one-half years to five and one-half years to sentence appellant to eight years in prison, upon appellant's conviction, after jury trial, of trafficking in heroin in violation of section 893.135(1)(c)1. We affirm in part, reverse in part, and certify a question to the Supreme Court of Florida.

At trial, evidence was presented that appellant had been in possession of a total of 13.1 grams of heroin which were distributed in 838 packets, 384 of which contained only counterfeit controlled substances. According to section 893.135(1)(c)1, Florida Statutes, one found guilty of possession of between four and fourteen grams of heroin shall be guilty of trafficking in illegal drugs and sentenced to a mandatory minimum term of three years and a $50,000 fine. Pursuant to section 893.135(1)(c)2, one found guilty of possession of between fourteen and twenty-eight grams of heroin is subject to a mandatory minimum sentence of ten years, with a $100,000 fine.

In his sentencing guidelines scoresheet, appellant was given points for legal constraint at the time of the offense since he was on probation. The trial judge departed from the guidelines for the following reasons:

a) 13.1 grams of heroin--14 grams would be 10 year minimum mandatory.

b) 836 small full packets.

c) On probation at time of offense.

d) PSI shows defendant was not a good probationer.

Appellant argues that none of the above reasons are clear and convincing to support departure in this case. We disagree. Reasons a) and b), which are essentially one reason--a large quantity of drugs--may constitute an appropriate reason for departure. Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Benitez v. State, 470 So.2d 734 (Fla. 2d DCA 1985); Mullen v. State, 483 So.2d 754 (Fla. 5th DCA 1986). In State v. Villalovo, 481 So.2d 1303 (Fla. 3d DCA 1986), the court allowed a downward departure from the recommended guidelines sentence based upon the small amount of contraband involved.

We reject appellant's argument that, pursuant to Hendrix v. State, 475 So.2d 1218 (Fla.1985), quantity of drugs involved is an inappropriate reason for departure because quantity is an inherent component of the offense which has already been factored into the guidelines score. As discussed in Mitchell, especially in cases involving the top of the range of the statute in regard to quantity, the guidelines sentence does not reflect the "aggravation" present in a given case by reason of the large quantity of contraband possessed by the defendant and that factor (large quantity) is a factor relating to the instant offense for which the defendant has been convicted and thus is not violative of rule 3.701(d)(11).

We conclude that when quantity of contraband is used as a reason for departure, that reason is not necessarily a duplication of factors already taken into account in arriving at the guidelines score since the guidelines do not specifically factor in the...