STATE OF FLORIDA, APPELLANT,
v.
JOSEPH D'ALEXANDER, APPELLEE
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The State appealed a trial court's decision to suspend a twelve-year sentence for drug possession and sale, instead placing the defendant on community control and probation conditioned on drug rehabilitation. The appellate court affirmed the conviction but reversed the sentence, holding that drug dependency and the need for rehabilitation do not constitute sufficient mitigating circumstances to depart from sentencing guidelines.
The trial court improperly departed from the sentencing guidelines. Drug dependency and the need for medical or rehabilitation treatment do not constitute sufficiently mitigating circumstances to justify departure from guidelines, as they do not ameliorate the level of defendant's guilt. Additionally, a probation officer's recommendation is an invalid reason for departure from sentencing guidelines.
[1] A drug dependency is not a sufficiently mitigating circumstance to justify a departure from sentencing guidelines, as it does not ameliorate the level of a defendant's gu…
[2] A probation officer's recommendation is an invalid reason for departing from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“To be sufficiently mitigating, the circumstance must ameliorate the level of defendant's guilt.”
Establishes the legal standard for valid mitigating circumstances in sentencing guideline departures
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Join FLexlaw to unlock all legal intelligenceJoseph D'Alexander was adjudicated guilty of possession and sale of cocaine and marijuana. He had an extensive prior criminal record. The sentencing g…
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RYDER, Judge.
The state appeals an order in which the trial court adjudicated appellee guilty of possession and sale of cocaine and marijuana, imposed a sentence and then suspended the sentence.
Appellee had an extensive prior record. The sentencing guidelines presumptive sentence was twelve to seventeen years. The court imposed a twelve-year suspended sentence and gave appellee two years of community control followed by three years probation. A condition of probation was that appellee enter and successfully complete an eighteen-month PAR Residential Program followed by a rehabilitation program in electronics.
The court, relying on the recommendations of appellee’s probation officer and psychologist, departed from the sentencing guidelines by placing appellee in a drug rehabilitation program. The court improperly departed from the sentencing guidelines.
The court may properly depart from the sentencing guidelines where sufficient mitigating circumstances exist. To be sufficiently mitigating, the circumstance must ameliorate the level of defendant’s guilt. Eutzy v. State, 458 So. 2d 755 (Fla.1984). For example, a defendant’s youth has been found to be a mitigating circumstance. State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986). A drug dependency is not a sufficiently mitigating circumstance. It does not ameliorate the level of a defendant’s guilt. The need for medical treatment does not justify a departure from the sentencing guidelines. Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984).
D’Alexander is quite similar to the defendant in State v. Barbera, 487 So. 2d 1184 (Fla. 4th DCA 1986). In Barbera, the court improperly departed downward on the basis of the defendant’s need for alcohol rehabilitation. Instead of the recommended seven to twelve year sentence, the court gave the defendant 364 days incarceration and ten years probation. The defendant agreed to attend an alcohol rehabilita tion program. The fourth district held that “while such an argument might be made in his defense at trial, it does not constitute good and sufficient reason for departing downward under the guidelines.” Id. at 1185. Similarly, D’Alexander’s drug problem was not a sufficient reason for departure from the sentencing guidelines recommended sentence.
By our holding today, we are not saying that a court may never make a downward departure from the sentencing guidelines. The record in this case simply does not show, beyond a reasonable doubt, that a downward departure is necessary.
The court also erred in improperly relying upon D’Alexander’s probation officer’s recommendation of a drug rehabilitation program. As was stated in Montgomery v. State, 489 So. 2d 1225 (Fla. 2d DCA 1986), a probation officer’s recommendation is an invalid reason for departure.
We affirm the adjudication of guilt, but reverse and set aside the sentence imposed. We remand the matter to the trial court and order that appellee be sentenced in accordance with the sentencing guidelines.
Affirmed in part, reversed in part and remanded with instructions.
GRIMES, A.C.J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rafferty v. State, 799 So. 2d 243 (Fla. 2d DCA 2001)…mitigating circumstances are not exclusive. State v. Amodeo, 750 So. 2d 664, 665-66 (Fla. 5th DCA 1999). Generally, mitigating circumstances supporting a downward departure ameliorate the level of the defendant’s culpability. State v. D’Alexander, 496 So. 2d 1007, 1008 (Fla. 2d DCA 1986). In evaluating a nonstatutory mitigating circumstance, the question the trial court should ask is whether the nonstatutory reasons for downward departure given meet the legislative policy for departing downward. State v. Che…
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J.M. v. State, 677 So. 2d 890 (Fla. 3d DCA 1996)…(Fla. 5th DCA), cause dismissed, 551 So. 2d 460 (Fla.1989); Byrd v. State, 531 So. 2d 1004, 1007 (Fla. 5th DCA 1988); Cahill v. State, 505 So. 2d 1113, 1114 (Fla. 2d DCA 1987); State v. Eason, 501 So. 2d 696 (Fla. 2d DCA 1987); State v. D’Alexander, 496 So. 2d 1007, 1009 (Fla. 2d DCA 1986); Montgomery v. State, 489 So. 2d 1225, 1226 (Fla. 5th DCA 1986); Tompkins v. State, 483 So. 2d 115, 116 (Fla. 2d DCA 1986). The sentencing decision is ultimately that of the court, not the probation officer, and cannot prop…
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State v. Weston, 510 So. 2d 1001 (Fla. 3d DCA 1987)…ts of the reasons given by the trial court for departure. (Of course, under our primary holding, none were necessary. Contra Evans.). In our view, the youth of the defendant does constitute a sufficient mitigating circumstance. State v. D’Alexander, 496 So. 2d 1007 (Fla. 2d DCA 1986); State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986) and cases cited; see § 921.141(6)(g) (age of defendant mitigating circumstance as to death penalty). While the lack of a prior record is factored into the guidelines and theref…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eutzy v. State, 458 So. 2d 755 (Fla. 1984)
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)
- State v. Mihocik, 480 So. 2d 711 (Fla. 5th DCA 1986)
- Montgomery v. State, 489 So. 2d 1225 (Fla. 5th DCA 1986)
- State v. Daughtry, 487 So. 2d 1184 (Fla. 4th DCA 1986)