Smith v. State

SCHEB, Acting Chief Judge.

The defendant, Jimmy Lee Smith, raises two issues on appeal, only one of which we find meritorious. Smith was adjudicated guilty of possession of cocaine and possession of paraphernalia. His recommended guidelines sentence was any nonstate prison sanction. The court, however, sentenced Smith to four years’ imprisonment on the cocaine charge and one year imprisonment on the paraphernalia charge, the terms to run concurrently.

The court justified its upward departure sentence by writing that Smith’s conduct in the presence of his girlfriend’s small children, who were…