Jean v. State

• Decision Date: 12 September 1984
• Docket Number: No. 83-2532,83-2532
• Citation: Jean v. State, 455 So.2d 1083 (Fla. App. 1984)
• Parties: Leo Armand JEAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1083

455 So.2d 1083

Leo Armand JEAN, Appellant, v. STATE of Florida, Appellee.

No. 83-2532.

District Court of Appeal of Florida Second District.

Sept. 12, 1984.

Robert A. Boland, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Chief Judge.

Jean appeals from the sentence imposed after his plea of no contest to two counts of delivery and possession of marijuana in violation of section 893.13, Florida Statutes (1983). We affirm.

The appellant was sentenced under the Florida Sentencing Guidelines, Florida Rules of Criminal Procedure 3.701 and 3.988(g). In Jean's case, for the total number of points calculated on his scoresheet, the corresponding chart lists a recommended sentence range of "any non-state prison sanction." Fla.R.Crim.P. 3.988(g). However, the trial judge chose to depart from the recommended range, and imposed a sentence of two years incarceration upon the appellant. As required under rule 3.701(d)(11), the judge provided a written statement delineating her reasons for departure:

1. The guidelines state that their purpose is punishment. The Defendant has previously received a six months county jail and a one year county jail sentence for similar offenses. That punishment did not deter him from committing further drug offenses.

2. Defendant violated his felony probation for a drug offense almost immediately (less than one month) after being placed on probation and was sentenced to one year in the county jail.

3. The amount of marijuana was not a small amount, but rather two pounds for $2,100.00, far exceeding the 20 grams necessary for a felony possession.

4. The Court realizes the guidelines do not allow for prior drug offenses to count extra "points" within the guidelines. However, this is the Defendant's third conviction for sale and possession of a controlled substance, and this Court finds that aggravating, particularly when he received both probation and two county jail sentences previously.

On appeal, Jean argues that under the rule, the trial judge improperly considered certain factors and misapplied the rule when deciding to aggravate his sentence. Specifically, the appellant contends that his previous jail sentences for similar convictions and his probation violation were already calculated on the scoresheet as prior convictions, and, according to the intent of the guidelines, cannot serve as reasons for departure. He further argues that because the two pounds of marijuana which he possessed is ninety-eight pounds less than the amount required to be convicted under the next most severe category of sales (trafficking), it was not the intent of the legislature to enhance the penalty in this fashion. Finally, he claims that because the guidelines under Category VII (drugs) do not provide for the calculation of extra points for the same criminal behavior as...