Stone v. State

Decision Date28 August 1981
Docket NumberNo. YY-406,YY-406
Citation402 So.2d 1330
PartiesCarl Ray STONE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael Allen, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

McCORD, Judge.

Appellant was convicted of trafficking in cocaine and sentenced to three years in prison. He appeals the judgment and sentence contending that the trial court erred in denying his motion to dismiss based upon his assertion that § 893.135, Florida Statutes, is unconstitutional and also erred in denying his motion to suppress evidence found in his home upon execution of a search warrant. We affirm.

As to appellant's argument that his motion to dismiss should have been granted because § 893.135(3) is unconstitutional, we find no error in the trial court's denial of the motion. That statute provides as follows:

The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.

In Stehling v. State, 391 So.2d 287 (Fla. 1st DCA 1981), this Court found that the foregoing statute does not unconstitutionally burden an accused's privilege against self-incrimination, secured by the Fifth Amendment to the United States Constitution. In State v. Benitez, 395 So.2d 514 (Fla.1981), the Supreme Court ruled that the foregoing statute was not unconstitutional on the theory that it denied equal protection of law to defendants who could not provide substantial assistance to law enforcement officials; that it is not unconstitutional on the theory that it coerces a defendant into relinquishing his Fifth Amendment privilege against self-incrimination by denying him sentencing leniency unless he cooperates with authorities; that the statute does not violate constitutional separation of powers; and the phrase "substantial assistance" in the statute was not unconstitutionally vague or violative of due process. In State v. Werner and Carlson, 402 So.2d 386 (Fla.1981), the Supreme Court ruled that the term "may" in the foregoing statute is not unconstitutionally vague in vesting the prosecutor with unbridled discretion when engaging in so-called "post-conviction information bargaining."

The appellant in the case sub judice presents a somewhat different twist in his argument of unconstitutionality. He points out that a co-defendant 1 who was charged in the same information with trafficking in drugs was allowed to plead to a lesser offense of possession for which he received an 18-month sentence with no mandatory minimum; that he (appellant) tried to cooperate with the state through his attorney, but his offer of assistance was turned down, and he received the mandatory three years imprisonment and the $50,000 fine dictated by statute. Appellant contends that the facts of this case show that the statute violates the constitutional separation of powers in that the ultimate sentencing decision rests with the prosecution and not with the trial judge; that in Benitez, the court concluded that the ultimate decision on sentencing resides with the trial judge because he exercises his discretion under the statute to grant or deny the motion for reduction or suspension of the sentence of a defendant who has cooperated with the state attorney; that under the facts of the case sub judice, the court had no discretion but to impose upon him the mandatory minimum sentence because the state attorney did not accept his cooperation, and, therefore, the ultimate sentencing decision in this case rested with the prosecution and not with the trial judge. We cannot agree with appellant's argument. The legislature determines the range of sentence for a particular crime, and the judge has the discretion to impose a sentence within that range. The court has the final discretion to impose sentence in each particular case. For a defendant who has cooperated with the state, the state attorney under the foregoing statute may move for reduction or suspension of sentence. The court is given the authority to grant or deny the motion. It has the final discretion. The statute does not grant to a defendant a right to cooperate or, having cooperated, a right to mitigation. As the Supreme Court said in State v. Werner and Carlson, supra:

State attorneys are "the prosecuting officer(s) of all trial courts" under our constitution, and as such must have broad discretion in performing their duties. Discretion to initiate the post-conviction information bargaining process is inherent in the prosecutorial function. Absent a clear constitutional violation in a particular factual context, we refuse to intrude on the prosecutorial function by holding subsection (3) unconstitutional on its face.

Appellant has no more cause to complain than he would have had if the state attorney had elected to prosecute him and not prosecute his co-defendant or had he elected initially to prosecute his co-defendant for a lesser offense. These are matters which properly rest within the discretion of the state attorney in performing the duties of his office. By the statute, the legislature has merely enlarged the range of sentence which the judge may give a defendant who has cooperated...

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3 cases
  • Dickerson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 20, 1982
    ...this court in Wheatt v. State, 410 So.2d 479 (Ala.Cr.App.1982). See also State v. Werner, 402 So.2d 386 (Fla.1981); Stone v. State, 402 So.2d 1330 (Fla.Dist.Ct.App.1981); Stehling v. State, 391 So.2d 287 Appellant raises several issues concerning the search of his residence and the affidavi......
  • State v. Ronngren, s. 1023
    • United States
    • North Dakota Supreme Court
    • January 16, 1985
    ...therein; Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S.Ct. 603, 38 L.Ed.2d 489 (1973); Stone v. State, 402 So.2d 1330 (Fla.Dist.Ct.App.1981); see generally Annot., 28 A.L.R. 4th 1219 The cases discussing this issue have generally involved circumstances where eithe......
  • Commonwealth v. Bryant, Record No. 2715-04-1 (VA 5/3/2005), Record No. 2715-04-1.
    • United States
    • Virginia Supreme Court
    • May 3, 2005
    ...two to three feet within the property line (within reach of the street curb) receives absolute protection. See Stone v. State, 402 So.2d 1330, 1332-33 (Fl. Dist. Ct. App. 1981) (finding search of trash cans placed in yard, "three to four feet from the street curb," was not unreasonable beca......

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