THE STATE OF FLORIDA, APPELLANT,
v.
ROBERT FINK, APPELLEE
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The court held that a defendant's drug addiction and amenability to rehabilitation are proper bases for a downward departure sentence from the guidelines.
[1] A defendant's drug addiction and amenability to rehabilitation constitute proper bases for a downward departure from sentencing guidelines.
[2] A prosecutor's failure to object to alleged errors in a guidelines scoresheet calculation at the time of sentencing waives the right to raise such errors on appeal.
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Join FLexlaw to unlock all legal intelligenceThe defendant pled no contest to strong arm robbery and received a downward departure sentence based on his drug addiction and amenability to rehabili…
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PER CURIAM.
The defendant pled no contest to the charge of strong arm robbery. His guidelines sentence was between 4½ to 5V2 years. The trial court sentenced him downward from the guidelines to 364 days in jail with the successful completion of Alcohol and Drug Abuse Program at the stockade and further recommended that defendant enter and successfully complete an outpatient drug rehabilitation program. As reasons for departure the trial court indicated:
Defendant is a very serious drug addict (cocaine) — defendant is to go to stockade for rehabilitation/followed by out-patient-treatment. Victim agrees that defendant should be rehabilitated.
At the plea hearing, the state advised the trial court that the defendant had three prior felony convictions “which had been mitigated down because of his drug problem.” 1 The trial judge responded by stating:
I think the defendant is getting older and he will see the light one of these days, and sometimes we just have to work with some people more than others ... and he is not violent ... He is doing this to support a habit, so I am comfortable with the plea.... The state appeals. We affirm. The defendant’s drug addiction and amenability to rehabilitation are proper bases for downward departure. State v. Bledsoe, 538 So. 2d 94 (Fla. 3d DCA 1989); State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988).
As a second point on appeal the State raises a complaint that the guidelines scoresheet was not correctly tabulated. Specifically, the State contends that the guidelines scoresheet should have included an additional thirty points for a prior conviction.
We reject this claim. The prosecutor at no time voiced an objection to any error in the score point calculation and the alleged error is not clearly determinable from the record. See Daily v. State, 488 So. 2d 532 (Fla.1986); Forehand v. State, 537 So. 2d 103 (Fla.1989).
Affirmed.
. There was apparently no proof of such downward departures. Argument of counsel is not evidence. Brown v. State, 538 So. 2d 523 (Fla. 3d DCA 1989).
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State v. Lavell Porter, 659 So. 2d 328 (Fla. 3d DCA 1995)…f the human being before her, left the constrictions of the sentencing guidelines. We are loath to interfere with the trial court’s legally sanctioned discretion under Herrin and Barbera. See Marsh v. Marsh, 419 So. 2d 629 (Fla.1982); State v. Fink, 557 So. 2d 129 (Fla. 3d DCA 1990). In conclusion, the trial court’s finding that there was a reasonable possibility Porter could achieve his stated desire to rehabilitate himself is supported by competent substantial evidence. Accordingly, we affirm Porter’s down…
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State v. Stutsman, 566 So. 2d 880 (Fla. 3d DCA 1990)…order but acknowledge express and direct conflict with Her-rin. Affirmed. . Downward departure sentences have been approved in a number of cases involving drug dependency in which there was no mention of expert testimony. See, e.g., State v. Fink, 557 So. 2d 129 (Fla. 3d DCA 1990); State v. Bledsoe, 538 So. 2d 94 (Fla. 3d DCA 1989); State v. Forbes, 536 So. 2d 356, 357 (Fla. 3d DCA 1988); State v. Wilson, 523 So. 2d 178, 179 (Fla. 3d DCA 1988); State v. Mesa, 520 So. 2d 328, 329 (Fla. 3d DCA 1988). . To th…
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Jenkins v. State (Fla. 4th DCA 2022)…et should include these additional convictions, nor did the State respond to Jenkins’s rule 3.800(b)(2) motion by raising this issue. Any error in failing to include these convictions is not clearly determinable from the record. See Stark v. Fink, 557 So. 2d 129, 130 (Fla. 3d DCA 1990) (rejecting the State’s claim that the scoresheet should have included an additional thirty points for a prior conviction because “[t]he prosecutor at no time voiced an objection to any error in the score point calculation and…
Authorities Cited
- THE Florida BAR v. Rightmyer, 488 So. 2d 532 (Fla. 1986)
- Forehand v. State, 537 So. 2d 103 (Fla. 1989)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Bledsoe, 538 So. 2d 94 (Fla. 3d DCA 1989)
- Brown v. State, 538 So. 2d 523 (Fla. 3d DCA 1989)