Timothy HOWARD, Appellant, v. STATE of Florida, Appellee.
Nos. 4D00-692, 4D00-3115.
District Court of Appeal of Florida, Fourth District.
March 20, 2002.
820 So.2d 337 (2002)
Robert A. Butterworth, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
TAYLOR, J.
Appellant, Timothy Howard, was tried by jury on a charge of trafficking in more than 200 grams of cocaine. He was found guilty of the lesser-included offense of possession of cocaine. We affirm appellаnt‘s conviction and sentence of five years imprisonment.
Following a pre-sentence investigation (PSI), the Department of Corrections recommended that appellant be placed on three years рrobation and perform one hundred hours of community service. The trial court agreed that probation would normally be appropriate for a first-time offender convicted of possession of cocаine, yet imposed the maximum permissible sentence under the Criminal Punishment Code (Code), five years in prison. Before imposing sentence, the court said:
Normally, for a possession of cocaine, which this court sees a great deal, on a daily basis, probation is usually the standard sentence where there‘s one or two rocks of cocaine, personal use, perhaps
some narcotics addiction or the like, that‘s very аppropriate. And the court is further aware that in cases where there‘s a first offense, the court should be lenient. And where there‘s not a lengthy prior criminal background, again, it sort of cries out for leniency. And to sentence someone to the maximum is, is, is generally not the standard and is, and would otherwise be considered an abuse of discretion.
The court has considered the presentence investigation and the like but the, the court frankly rejects the, the recommendation of the probationary plea.
And the court does so for the following reasons. The facts in this case were very very clear. The facts in this case demonstrated that the dеfendant was in possession of a substantial amount of narcotics, a substantial amount of money. There was a, well over $3,000, there was $1,200 I believe, in the defendant‘s vehicle in the glove box, and further a little over $2,000 in a shoe bоx wherein the cocaine was found. And this was not merely just a street level issue.
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And based upon all of the evidence, the court finds that the, that the defendant is entitled to be sentenced to something beyond the probationаry sentence as suggested by the, by the defendant and by the probation officer.
During the pendency of this appeal, appellant filed a
The state argues that appellant‘s five-year sentence is nоt subject to appellate review because it falls within the statutory limits of the Code. The Code provides that “the trial court may impose a sentence up to and including the statutory maximum for any offense ....”
Indeed, the general rule in Florida is that when a sentence is within statutory limits, it is not subject to review by an appellate court. Booker v. State, 514 So.2d 1079, 1081 (Fla.1987). As the Florida Supreme Court explained in Brown v. State, 152 Fla. 853, 13 So.2d 458, 461 (1943), superseded by statute on other grounds, State v. Altman, 106 So.2d 401 (Fla.1958):
The legislature has by statute fixed the maximum punishment which may be imposed for violation of the provisions of the statutes, and therefore, it is within the province of the triаl court to fix by sentence the punishment within the limits prescribed by statute.
However, we have recognized an exception to the general rule against interfering
In this case, appellant argues that the trial court violated his constitutional right to due process by improperly relying on conduct for which he had been acquitted by the jury‘s verdiсt. While the due process clause does prohibit a court from considering charges of which an accused has been acquitted when passing sentence,1 it does not preclude the court from considering all relevant factors when imposing a sentence authorized for the crime of which the defendant was convicted. The United States Supreme Court stated:
It is well established that a judge or other sentencing authority is to be aсcorded very wide discretion in determining an appropriate sentence. The sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed.
Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). More recently, the Supreme Court recognized that it is permissible “for judges to exercise discretion—taking into consideration various factors relating both tо offense and offender—in imposing a judgment within the range prescribed by statute.” Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2358, 147 L.Ed.2d 435 (2000).
Here, the sentencing court acknowledged that appellant had been acquitted by the jury of trafficking in cocaine. However, in deciding upon an appropriatе sentence for the lesser cocaine possession offense, the trial court expressed concern about the substantial amount of cocaine and money found in appellant‘s possession. The court stated:
Now the court is well aware that the jury found the defendant guilty of possession of cocaine, not trafficking, in the amount in excess of two hundred grams. However, that does not mean that the uncontradicted evidence before the court is something that the court must turn a blind eye to.
As noted above, when the court sentenced appellant to the maximum five-year term of imprisonment, it imposed a sentence within the permissible rаnge for possession of cocaine, not trafficking. Had appellant been convicted by the jury of trafficking in cocaine, the trial court could have sentenced him up to thirty years imprisonment for a first degreе felony.
Because the trial court did not increase appellant‘s punishment beyond the statutory maximum for possession of cocaine, no due process concerns are implicated by the court‘s re-assessment of facts previously considered by the jury on the trafficking charge. The trial court‘s finding that appellant possessed a substantial amount of narcotics is not a determination of an “element” of an offense contrary to the jury verdict, but rather a consideration of a traditional sentencing factor. In the trial court‘s view, the amount of drugs found in appellant‘s possession elevated his case beyond “a street level issue” and justified the maximum sentence. It is not uncommon or inappropriate for a trial judge to consider the quantity of drugs introduced against a defendant in a narcotics cases. See, e.g., Brown v. State, 234 So.2d 161 (Fla. 4th DCA 1970) (no error in denying defendant‘s motion to set aside guilty plea and three-year sentence whеre defendant, a first-time offender, did not receive probation, as expected, after it came to the trial court‘s attention that defendant‘s possession of marijuana was of a more serious nature and indicated that he was a “pusher” and not a mere user). See also United States v. Bernal, 884 F.2d 1518, 1520 (1st Cir.1989) (upholding a thirty-year sentence imposed for a first-time narcotics offender in a proceeding where the trial judge commented, “It is impossible for me to understand that if the defendant says this is the first time that he was involved in drugs how could it be that he had 17 kilos of cocaine 90 percent pure? That is inconceivable because you don‘t have access to that amount of drugs unless you havе been dealing in drugs for quite a number of years.“).
In sum, the trial court‘s consideration of the “trafficking” amount of cocaine possessed by appellant in sentencing him on the lesser charge of possession of coсaine did not violate due process principles, because the amount of contraband was a proper factor to consider in determining the extent of punishment to be imposed within the limits fixed by law. In so concluding, we distinguish those cases cited by appellant, which involve the imposition of enhanced or departure sentences.2
We have considered all issues raised by appellant in challenging his conviction but find them to be without merit. Therefore, we affirm both his conviction and sentence.
AFFIRMED.
GUNTHER J. and DELL, JOHN W., Senior Judge, concur.