Opinion
No. 87-1537.
October 21, 1988. Rehearing Denied November 17, 1988.
Appeal from the Circuit Court, Pasco County, Edward H. Bergstrom, Jr., J.
Daniel F. Daly and Norman S. Cannella of Norman S. Cannella, P.A., Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant, Francisco Restrepo, was convicted of trafficking in more than four hundred grams of cocaine, and was sentenced to serve thirty years in prison and to pay a $250,000 fine. On appeal, appellant challenges both his conviction and sentence. We find merit only in appellant's sentencing issue and remand to the trial court on that issue alone. We find no merit in appellant's other contentions and, accordingly, affirm appellant's conviction.
In sentencing appellant, the trial court departed from the minimum mandatory sentence of fifteen years (section 893.135(1)(b)3, Florida Statutes (1987)), and sentenced appellant to serve thirty years in prison. The court gave the following written reasons to depart:
As the legislature has determined that one found guilty of trafficking in 400 grams of cocaine should be imprisoned for 15 years, what should the appropriate sentence be for one convicted of trafficking in 22 times 400? To suggest that the sentence should be the same is an affront to justice. Justice demands that one convicted of trafficking in 8898 grams of cocaine receive a greater punishment than one convicted in trafficking in 4 1/2% of that amount.
(R 1271).
The trial court thus clearly departed because of the greater amount of narcotics involved in the crime. This is improper under Atwaters v. State, 519 So.2d 611 (Fla. 1988). We, therefore, vacate appellant's sentence and remand to the trial court for resentencing within the guidelines range.
DANAHY and SCHOONOVER, JJ., concur.