MELCHOR BERNADINI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the mandatory minimum sentence is not meaningful or substantive when the guidelines sentence exceeds it.
Appellant was convicted of trafficking cocaine and sentenced within the guidelines range, but the trial court also imposed a statutory minimum mandato…
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SHARP, Chief Judge.
Bernadini appeals his sentence which was imposed after he was convicted of trafficking in cocaine in an amount exceeding twenty-eight grams in violation of section 893.135(1)(b)1, Florida Statutes, (1987). He was sentenced within the guidelines range to four years incarceration. However, the trial court imposed a three year minimum mandatory sentence within the four-year term, pursuant to section 893.-135(1)(b)1, Florida Statutes (1987).
The question in this case is whether Florida Rule of Criminal Procedure 3.701.d.9., which provides that the guidelines sentence takes precedence if it exceeds the mandatory penalty, eliminates the necessity to impose a statutory mandatory minimum sentence. For the reasons stated in State v. Hall & Peterson, 538 So. 2d 468 (Fla. 5th DCA 1989), we do not think the reference to a three year minimum mandatory sentence in this case is meaningful or substantive. By sentencing Bernadini to four years, the trial judge more than complied with section 893.135(1)(b)1. That statute is also binding on the Parole and Probation Commission as to parole (see § 947.16(2)(g)) and administrative gain time (§ 944.-276(l)(a)).1
Because we regard the three year minimum mandatory sentence as surplusage, we affirm.
AFFIRM.
COWART and DANIEL, JJ., concur. . Incentive gain time provided for by § 944.275 does not exclude trafficking offenses under § 893.135(1)(b)1., so it may be earned without regard to any minimum mandatory sentence language.
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State v. McKENZIE, 574 So. 2d 1176 (Fla. 5th DCA 1991)…nificance.” 538 So. 2d 468. [*1179] The Hall opinion was aimed at taking care of a situation in which a trial judge erroneously believed that he had eliminated a mandatory minimum sentence by eliminating a check mark from a form. Bernadini v. State, 540 So. 2d 132 (Fla. 5th DCA 1989), relied on Hall in holding that there was no error when a trial court expressly imposed a three year mandatory minimum sentence within a four year guidelines sentence. This court’s opinion in the instant case needs to correct the…
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State v. Moran, 561 So. 2d 685 (Fla. 4th DCA 1990)…DOWNEY, Judge. Affirmed upon authority of Bernadini v. State, 540 So. 2d 132 (Fla. 5th DCA 1989) and State v. Hall, 538 So. 2d 468 (Fla. 5th DCA 1989). WARNER, J., concurs. HERSEY, C.J., concurs specially with opinion.…
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Terrie Ellen ENT v. State, 558 So. 2d 101 (Fla. 2d DCA 1990)…, and the judgment and sentence so reflect. On appeal Ent contends that Florida Rule of Criminal Procedure 3.701(d)(9) precludes the imposition of the minimum mandatory provision. We disagree. Although there is some suggestion in Bernadini v. State, 540 So. 2d 132 (Fla. 5th DCA 1989), that this is surplusage when imposed in conjunction with a guideline sentence of greater duration, we do not construe that decision as entitling Ent or anyone similarly situated to any substantive relief.2 Affirmed. SCHEB, A.C…
Authorities Cited
- State v. Hall, 538 So. 2d 468 (Fla. 5th DCA 1989)