Samples v. State, s. 86-1072
| Decision Date | 02 December 1987 |
| Docket Number | Nos. 86-1072,86-1276,s. 86-1072 |
| Parties | 12 Fla. L. Weekly 2771 Mark Jerome SAMPLES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and A.N. Radabaugh, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
The appellant, Mark Jerome Samples, challenges both his sentence and the costs imposed under section 27.3455, Florida Statutes (1985). He contends that his sentence was improper because the court assigned too many guidelines scoresheet points to his prior federal conviction. He also contends that, since he was insolvent and had received no prior notice, the court improperly assessed costs under section 27.3455, Florida Statutes (1985). We affirm the appellant's sentence and remand on the issue of costs.
The appellant entered a negotiated plea of nolo contendere to the charge of delivery of cocaine. A condition of the agreement was that if the appellant fell into the first cell on the guidelines scoresheet the court would sentence him to no more than eight months in the county jail.
The appellant had a prior federal conviction for conspiracy to possess with intent to distribute marijuana under 21 U.S. C. §§ 846 and 841(a)(1), (1970 and 1978). Under Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2), a prior federal conviction is to be scored the same as the analogous or parallel Florida offense would be scored. The trial court here scored the federal conviction as it would an offense under the Florida trafficking statute. § 893.135(1)(a)(1), Fla.Stat. (1985). This increased appellant's guidelines sentence to thirty months in prison, substantially more than the hoped-for eight months in county jail.
The appellant contends that the court should have scored his prior federal conviction under section 893.13(1)(a)(2), Florida Statutes (1985) and the conspiracy statute (section 777.04(4)(d), Florida Statutes (1985)) because section 893.13(1)(a)(2) is the true analogue to the federal statute involved. Since a violation of section 893.13(1)(a)(2) is a third-degree felony, the conspiracy statute would reduce the offense to a first degree misdemeanor and result in the desired sentence of no more than eight months in the county jail.
The appellant notes that the Florida trafficking statute contains a specific pound requirement, while the federal statute does not. In addition, while the federal statute proscribes possession with intent to sell, the Florida trafficking statute does not. The Florida Statute (§ 893.13(1)(a)(2), Fla. Stat. (1985)) advanced by the appellant does contain that language.
Florida Rule of Criminal Procedure 3.701(d)(5)(a)(2) clearly intends that convictions, not acts, are to be scored. For this reason, the specific facts of the prior offense are not normally considered. If there is any question, however, as to the severity, "[t]he burden ... is on the state to clearly demonstrate the nature of the prior crime, ... otherwise, as the rules provide, the benefit of the doubt goes to the defendant." Rodriguez v. State, 472 So.2d 1294, 1296 (Fla. 5th DCA 1985).
There was a question as to severity here because there is no precisely parallel Florida Statute. Accordingly, the state here introduced into evidence DEA reports of the appellant's prior federal conviction. Those reports revealed that the appellant was convicted of conspiring to possess and deliver over one hundred pounds of marijuana. Under these circumstances, where there is no precisely parallel Florida Statute, we...
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