From Casetext: Smarter Legal Research

Jimenez v. State

District Court of Appeal of Florida, Second District
Apr 2, 1986
486 So. 2d 36 (Fla. Dist. Ct. App. 1986)

Opinion

No. 85-2191.

April 2, 1986.

Appeal from the Circuit Court, Hillsborough County, Harry Lee Coe, III, J.

Reed C. Cary, of Vaughn, Vaughn, Vaughn, Silvernail Cary, Melbourne, for appellant.

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


The appellant, Anthony J. Jimenez, appeals from the trial court's judgment and sentence following conviction for delivery of and conspiracy to traffic in one ounce of cocaine in violation of section 893.135, Florida Statutes (1985). We have reviewed and rejected four of the appellant's five points on appeal. We find merit in the attack upon the trial court's grounds for departure from a presumptive sentence. The appellant's refusal to identify his supplier and to cooperate with law enforcement officials is an inadequate base for departing from a guidelines sentence. Banzo v. State, 464 So.2d 620 (Fla. 2d DCA 1985).

Similarly, we cannot sustain the trial court's reliance upon the quantity of cocaine as a clear and convincing reason for departure. Although the record speaks to the amount of cocaine involved in the trafficking as one ounce, our conversion to grams discloses that it exceeded the 28 gram statutory threshold by approximately .35 grams, a de minimus excess sufficient to warrant conviction but not departure. Gallo v. State, 483 So.2d 876 (Fla. 2d DCA 1986). But cf. Pursell v. State, 483 So.2d 94 (Fla. 2d DCA 1986) (valid departure based upon quantity of drugs where 1,952.5 grams of cocaine involved in conspiracy to traffic); Guerrero v. State, 484 So.2d 59 (Fla. 2d DCA 1986) (quantity of drugs justified departure where 965.4 grams of cocaine involved in trafficking transaction).

Section 893.135(3).

Accordingly, we affirm the appellant's conviction but reverse the sentence and remand to the trial court for resentencing within the guidelines' presumptive range. See Edwards v. State, 482 So.2d 553 (Fla. 2d DCA 1986).

CAMPBELL, A.C.J., and HALL, J., concur.


Summaries of

Jimenez v. State

District Court of Appeal of Florida, Second District
Apr 2, 1986
486 So. 2d 36 (Fla. Dist. Ct. App. 1986)
Case details for

Jimenez v. State

Case Details

Full title:ANTHONY J. JIMENEZ, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Apr 2, 1986

Citations

486 So. 2d 36 (Fla. Dist. Ct. App. 1986)

Citing Cases

Pedraza v. State

Pedraza owed no legal obligation to cooperate with the authorities, outside of his plea agreement for a lower…

Welker v. State

Addressing appellant's first point on appeal, we conclude that each of these reasons is invalid. While some…