THE STATE OF FLORIDA, APPELLANT,
v.
FRANCISCO MESA, APPELLEE
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The State appealed a trial court's downward departure sentence of three years' probation for Mesa's cocaine possession and sale convictions. The appellate court reversed and remanded, finding that two of the three reasons given for departure were legally invalid under sentencing guidelines law, and certified a question of great public importance regarding the applicability of a 1987 sentencing guidelines amendment to pre-July 1, 1987 crimes.
The appellate court held that the trial court's first two reasons for departure were invalid: drug quantity is not a valid departure reason, and family support unsupported by the record cannot justify departure. However, drug addiction may be a valid reason for downward departure. The court reversed and remanded for resentencing.
[1] The quantity of drugs involved in a crime is not a valid reason for a downward departure from sentencing guidelines.
[2] A defendant's support from family and friends in drug rehabilitation, without more, cannot justify a departure sentence.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the quantity of drugs involved in a crime is not a valid reason for departure, Atwaters v. State, 519 So.2d 611 (Fla.1988), the sentence cannot stand on the first reason.”
Establishes that drug quantity is categorically an invalid basis for sentencing departure.
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Join FLexlaw to unlock all legal intelligenceMesa pled nolo contendere to one count of possession of cocaine and one count of selling cocaine. The trial court sentenced Mesa to three years' proba…
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JORGENSON, Judge.
The state appeals from an order of the trial court sentencing Mesa to three years’ probation. Mesa pled nolo contendere to one count of possession and one count of selling cocaine. The presumptive guidelines sentence was community control or twelve to thirty months’ incarceration. The trial court based its downward departure on the following reasons: (1) the comparatively small amount of the drug involved; (2) the support of Mesa’s family and friends in his drug rehabilitation; and (3) the fact that Mesa’s commission of the crime was partially attributable to his drug addiction.
Because the quantity of drugs involved in a crime is not a valid reason for departure, Atwaters v. State, 519 So. 2d 611 (Fla.1988), the sentence cannot stand on the first reason. The second reason for departure, that Mesa has the support of family and friends in his drug rehabilitation, is unsupported by the record and, without more, cannot justify a departure sentence. State v. Daughtry, 505 So. 2d 537, 539 (Fla. 4th DCA), rev. dismissed, 511 So. 2d 999 (Fla.1987). The final reason, that Mesa’s drug addiction may have caused him to commit the crime, may justify a downward departure. Barbera v. State, 505 So. 2d 413, 414 (Fla.1987); Daughtry.
Because there are two invalid reasons and one valid reason given for the departure sentence, we reverse Mesa’s sentence and remand the case to the trial court for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
We are cognizant of Felts v. State, No. BJ-413 (Fla. 1st DCA Jan. 14, 1988), and acknowledge that the result reached in the instant case is contrary to Felts. The Felts court engaged in a lengthy analysis of section 921.001(5), as amended by chapter 87-110, section 2, and concluded that regardless of whether the amendment were construed “as merely a clarification of the legislative intent, or as a change in the law,” it would not violate the constitutional ex post facto prohibition and would apply to all cases pending after July 1, 1987. We are persuaded that the views expressed by Judge Zehmer in his Felts dissent correctly interpret the amendment to the sentencing guidelines as a substantive change in the law. We note that the second district has concluded that the 1987 amendment is inapplicable to crimes committed prior to July 1, 1987. Hoyte v. State, 518 So. 2d 975 (Fla.2d DCA 1988). In so deciding, the court apparently considered the amendment procedural in nature.1 We join the first district in certifying the following question as one of great public importance:
WHETHER THAT PORTION OF CHAPTER 87-110, LAWS OF FLORIDA, WHICH AMENDS SECTION 921.-001(5), FLORIDA STATUTES, IS APPLICABLE TO APPELLATE REVIEW OF SENTENCES IMPOSED FOR OFFENSES WHICH WERE COMMITTED PRIOR TO JULY 1, 1987.
Reversed and remanded.
. We do not address the secondary constitutional issue implicit in section 921.001(5) as amended by chapter 87-110, section 2, regarding the legislature’s authority to invade the province of appellate courts by mandating the disposition of sentencing departure cases, because we conclude that the instant case is controlled by Albritton v. State, 476 So. 2d 158 (Fla.1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)…2 (Fla.1985) (courts will show great deference to laws passed to clarify existing law). In any event, the result in this case would be the same under pre-Carawan case law, under Carawan, or under the recently enacted statute. . Under State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988), appellate review of the sentence is governed by Albritton v. State, 476 So. 2d 158 (Fla.1985) (remand for resentencing if appellate court is not convinced beyond a reasonable doubt that trial judge would have departed from guidel…
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…the amendment prospective effect only, leaving the Albritton standard applicable to this case. We note that after the panel opinion in this case was filed, at least one other district court of appeal has reached this same conclusion. State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA, 1988). Upon consideration of the record, because the several invalid reasons for departure involved conduct amounting to serious violations of law that should affect the extent of departure as well as the trial judge’s determination t…1 / 2
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ABT v. State, 528 So. 2d 112 (Fla. 4th DCA 1988)…In my view, after Miller v. Florida, 482 U.S. -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the decision in Felts v. State, 13 F.L.W. 205 (Fla. 1st DCA Jan. 14, 1988), is anachronistic. In the instant case, this court should be following State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988), and not Felts, which the First District Court will hopefully undo upon rehearing. I think Albritton v. State, 476 So. 2d 158 (Fla.1985), governs the instant case, because section 921.001(5), Florida Statutes (1987), makes a sub…1 / 2
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Barbera v. State, 505 So. 2d 413 (Fla. 1987)
- Atwaters v. State, 519 So. 2d 611 (Fla. 1988)
- State v. Daughtry, 505 So. 2d 537 (Fla. 4th DCA 1987)
- Hoyte v. State, 518 So. 2d 975 (Fla. 2d DCA 1988)