Opinion
No. 87-02924.
April 26, 1989.
Appeal from the Circuit Court, Pasco County, Edward Bergstrom, Jr., J.
Stephen J. Finta, Fort Lauderdale, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.
Appellant, Theresa Sandoval, appeals the March 21, 1987 judgment and sentence finding her guilty of trafficking in cocaine and sentencing her to thirty years in prison with fifteen years minimum mandatory. On appeal, appellant challenges both her conviction and her 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.
The guidelines provided for a three-and-one-half to four-and-one-half year sentence, with fifteen years minimum mandatory. The court departed and ordered appellant to serve thirty years in prison, with fifteen years minimum mandatory. In its written departure order, the court observed that since the sentence for trafficking in 400 grams is fifteen years in prison (section 893.135(1)(b)3, Florida Statutes (1987)), justice demanded that one convicted of trafficking in twenty-two times that amount, 8,898 grams, should receive a greater punishment than one convicted of trafficking in four-and-one-half percent of that amount.
The trial court 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). As with appellant's codefendants, we, therefore, affirm the conviction for trafficking in cocaine, vacate appellant's sentence and remand to the trial court for resentencing within the guidelines range. Restrepo v. State, 533 So.2d 1180 (Fla. 2d DCA 1988); Sanchez v. State, 533 So.2d 1190 (Fla. 2d DCA 1988).
Conviction affirmed, sentence vacated and remanded with instructions.
PARKER and ALTENBERND, JJ., concur.