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Jimenez v. State , 486 So. 2d 36 ( 1986 )


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  • 486 So. 2d 36 (1986)

    Anthony J. JIMENEZ, Appellant,
    v.
    STATE of Florida, Appellee.

    No. 85-2191.

    District Court of Appeal of Florida, Second District.

    April 2, 1986.

    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.

    FRANK, Judge.

    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.[1]*37 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).

    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.

    NOTES

    [1] Section 893.135(3).