Brown v. State, 85-1229
| Decision Date | 24 April 1986 |
| Docket Number | No. 85-1229,85-1229 |
| Citation | 487 So.2d 1158,11 Fla. L. Weekly 967 |
| Parties | 11 Fla. L. Weekly 967 Wilton Oliver BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a guideline departure sentence. The appellant, Brown, was charged by information with one count of sale of cocaine, and a second count of possession of cocaine. Pursuant to plea negotiations, he pled guilty to the latter cocaine charge, and the state dismissed the sale count. The recommended sentence pursuant to appellant's guidelines score sheet was any nonstate prison sanction. However, the trial court departed from the recommended sentence, sentencing Brown to thirty months in state prison, for the following reasons:
(1) Aggravated circumstances of the offense: officers served a search warrant on defendant's apartment seizing 10 grams of cocaine, a baggie of marijuana, a food processor with cocaine residue, set of scales, $2900 in money and a 357 [sic] magnum pistol from defendant's pocket. This was indicative of a drug selling operation as opposed to simple possession. (2) Court takes judicial notice that McLaren Circle where offense occurred is an area of high drug usage and sales. A county jail sentence would depreciate the seriousness of the offense and lack general deterrent value as well as undermine the confidence of the public and law enforcement agencies in the court system.
On appeal, Brown contends that neither of the cited reasons given by the trial court justifies departure on a "clear and convincing" basis. See Fla.R.Crim.P. 3.701(d)(11).
Reason (2), as pointed out by the state, actually contains two components: (a) the area where the offense occurred is "an area of high drug usage and sales," and (b) the recommended guideline sentence is insufficient because of the seriousness of the offense. These reasons are very similar to those provided by the trial court in Santiago v. State, 478 So.2d 47 (Fla.1985), which were:
(1) The public perception in the community of Dade County of the relative danger to the community of possession with intent to sell cannabis as distinguished from possession with intent to sell Lysergic Acid Diethylamide may differ significantly from the real or perceived dangers in Santa Rosa County, and
(2) The nature and perceived danger of possession with intent to sell LSD in this judicial circuit.
478 So.2d at 49. As to the area factor, the supreme court rejected the trial court's rationale that felony drug convictions warrant a greater punishment in North Florida than is required in South...
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...plea and conviction and thus cannot be held accountable for that conduct. Santiago v. State, 478 So.2d 47 (Fla.1985); Brown v. State, 487 So.2d 1158 (Fla. 5th DCA 1986). The court should not have assessed costs against this appellant. He had been determined previously to be indigent and the......
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