Santiago v. State, AW-418

• Decision Date: 28 November 1984
• Docket Number: No. AW-418,AW-418
• Citation: 459 So.2d 468
• Parties: Aniceto P. SANTIAGO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 468

459 So.2d 468

Aniceto P. SANTIAGO, Appellant, v. STATE of Florida, Appellee.

No. AW-418.

District Court of Appeal of Florida,

First District.

Nov. 28, 1984.

Ted A. Stokes, Milton, for appellant.

Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant appeals the sentence imposed by the trial court after conviction by a jury of possession of, with the intent to sell, Lysergic Acid Diethylamid (LSD). Appellant contends here that the trial court erred in departing from the recommended sentencing guidelines, Florida Rules of Criminal Procedure 3.701, In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). Under the guidelines, appellant's score would have resulted in a recommended sentence of probation to a maximum of twelve months imprisonment, a non-state prison sanction. The trial court, however, chose to depart from the guidelines and sentenced appellant to an indeterminate sentence of between six months to three years imprisonment in a state institution. We affirm.

After conviction of the offense, which was committed in Gulf Breeze, Florida, appellant filed a timely election to be sentenced under the sentencing guidelines, Florida Rules of Criminal Procedure 3.701. At the sentencing hearing, both the state and defense counsel recommended that appellant's sentence be time served, which to that point amounted to approximately eleven months incarceration. Such a sentence would have fallen within the recommended guidelines sentence. However, the trial court chose to depart from the guidelines, and sentenced the appellant to an indeterminate sentence of between six months to three years in state prison, with credit for 311 days time served to date. As reasons for the departure, which were set forth in a meticulously prepared six-page order, the trial judge found, among other things, "that the nature of the drug LSD and its damage to the citizens of the First Judicial Circuit warrants a sentence outside of the sentencing guidelines." The trial judge also cited the need to satisfy the "dispassionate enlightened conscience of the community" of Santa Rosa County. The trial judge felt that a departure from the guidelines in appellant's case would "have a substantial deterrent effect on such criminal conduct." The trial judge further cited what he found to be the "nature and perceived dangers to the community and the community interest in deterring the possession with intent to sell Lysergic Acid Diethylamid" in Santa Rosa County, an area he characterized through judicial notice as a predominantly rural, agricultural economy and culture. After the trial judge gave his reasons for departure, appellant's counsel and the state stipulated that the area where appellant had been arrested, Gulf Breeze, was an urban area, not rural.

Appellant asserts that Rule 3.701 delineates the presumptively correct bounds of judicial discretion, and that the trial court's reasons for departure were not clear and convincing in that there is no evidence in the...