Echevarria v. State, 85-552
| Decision Date | 12 August 1986 |
| Docket Number | No. 85-552,85-552 |
| Citation | 11 Fla. L. Weekly 1767,492 So.2d 1146 |
| Parties | 11 Fla. L. Weekly 1767 Nivaldo ECHEVARRIA, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Michael A. Rosen, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before HENDRY, BASKIN and JORGENSON, JJ.
Defendant Echevarria was charged, pursuant to section 893.135(1)(b), Florida Statutes (1983), with trafficking in cocaine by the possession of 400 grams or more of cocaine. A search of his person yielded 28.5 grams of cocaine; a subsequent search of the vehicle he had been seen driving, and of the nearby warehouse, led to the recovery of over 400 grams of cocaine.
Following trial, the jury found Echevarria guilty of trafficking in cocaine by possessing 28.5 grams of cocaine "on his person," effectively acquitting him of any connection with the drugs found in the automobile and the drug warehouse. The trial judge calculated Echevarria's sentence, under sentencing guidelines, at five and one-half to seven years, but departed from the guidelines, sentencing Echevarria to seventeen years' imprisonment. 1 Echevarria appeals the sentence. We reverse and remand for resentencing.
The state concedes that the trial court erred in computing defendant's sentence under the guidelines. In assessing points, the trial judge improperly considered a conviction that occurred subsequent to the offense charged, and the fact that Echevarria was on bond at the time of the offense. The parties agree that the correct guidelines sentence should be three and one-half to four and one-half years instead of the five and one-half to seven year sentence the trial court computed. Incorrect computations on a scoresheet necessitate vacating the sentence and remanding for resentencing. Self v. State, 487 So.2d 391 (Fla. 1st DCA 1986); Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985).
Next, we turn to the trial court's departure from the guidelines sentence. The scoresheet contains an unsigned statement as a justification for departure:
[D]eparted 3 cells because def[endant] is a [sic] habitual narcotics dealer, was out on bond on narcotics when this offense was committed which shows an escalating pattern of more serious offense as with this case it involved a cocaine laboratory which could have blown up a whole neighborhood and evidence showed def[endant] fired a gun in the area of this ether filled laboratory.
If, in fact, these reasons were penned by the trial court, they do not constitute valid bases for departure from the guidelines sentence. First, the trial court failed to comply with the requirements of section 775.084, Florida Statutes (1985), which calls for specific findings of fact before enhancing a defendant's sentence on the ground that he is an habitual offender. Bogan v. State, 489 So.2d 157 (Fla. 2d DCA 1986).
Second, the trial court erred in aggravating the sentence based on the fact that Echevarria was out on bond at the time the offense was committed. Florida Rule of Criminal Procedure 3.701(d)(11) prohibits departure predicated on "factors relating to prior arrests without conviction." Fisher v. State, 489 So.2d 857 (Fla. 1st DCA 1986). At the time of sentencing, Echevarria had been arrested and released on bond, but had not been convicted for another offense.
Third, the trial court erred in finding an escalating pattern of offensive conduct. Although under certain egregious circumstances a trial court may depart from the guidelines sentence based on a finding that a defendant has exhibited an escalating pattern of criminal activity, the record under consideration does not support such a...
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