THE STATE OF FLORIDA, APPELLANT,
v.
DANIEL CARVER STUTSMAN, APPELLEE
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Florida appeals a downward departure sentence imposed on a defendant who pled no contest to two counts of third-degree grand theft. The Third District Court of Appeal affirmed the departure, holding that drug addiction may be established through a defendant's own testimony and not solely through expert testimony, and that the trial court's findings supported the downward departure sentence.
The court held that drug addiction may be proven through a defendant's own testimony without requiring expert testimony, and that the trial court's factual findings of drug addiction provided substantial competent evidence to support the downward departure sentence. The court affirmed the downward departure order.
[1] A defendant's own testimony can constitute substantial competent evidence to support a finding of drug addiction for purposes of a downward departure sentence.
[2] Expert testimony is not the sole method for proving drug addiction in criminal proceedings.
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Join FLexlaw to unlock all legal intelligence“Defendant was addicted to crack cocaine and using it daily for three years until his present incarceration.... The crimes in the above styled cases would not have occurred but for defendant's addiction to crack cocaine.”
Trial court's factual findings supporting the downward departure, which the appellate court found to be supported by substantial competent evidence from the defendant's testimony.
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Join FLexlaw to unlock all legal intelligenceDefendant Stutsman pled no contest to two counts of third-degree grand theft, each carrying a five-year maximum sentence. The sentencing guidelines re…
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PER CURIAM.
The State appeals a downward departure sentence. We affirm.
Defendant Daniel Stutsman pled no contest to two counts of third degree grand theft, each of which was a third degree felony subject to a five year maximum sentence. The guidelines scoresheet yielded a recommended range of twelve to seventeen years imprisonment, and a permitted range of nine to twenty-two years. The court accepted the defendant’s plea over the State’s objection and sentenced the defendant to two five-year concurrent terms. The court entered a written order for downward departure based on the defendant’s addiction to crack cocaine. Although the written order did not so reflect, the trial court recommended drug treatment for defendant while incarcerated.
On this appeal the State challenges the departure order and contends that, pursuant to Branam v. State, 554 So. 2d 512 (Fla.1990), the trial court was obliged to impose consecutive sentences so as to bring the penalty to nine years, the minimum of the permitted range. In support of its argument the State first contends that the sole method for proof of drug addiction is to introduce expert testimony, and that the defendant’s own testimony cannot be considered. To the contrary, there is no such proscription, see § 90.601, Fla.Stat. (1989), and no such objection was made below. It is true, as the State contends, that in Barbera v. State, 505 So. 2d 413 (Fla.1987) and State v. Herrin, 555 So. 2d 1288 (Fla. 2d DCA), jurisdiction accepted, 560 So. 2d 233 (Fla.1990) (table), expert testimony was offered, but that is not the sole means of proof.1
The trial court found, in part, that “Defendant was addicted to crack cocaine and using it daily for three years until his present incarceration.... The crimes in the above styled cases would not have occurred but for defendant’s addiction to crack cocaine.” The defendant’s testimony provided substantial competent evidence to support the finding.2 Under this court’s existing precedents, the factual findings are sufficient to support the downward departure sentence. See cases cited supra note 1.
The State also argues that this court should follow the narrow view of Barbera v. State, which was recently announced by the second district in State v. Herrin. As this court’s precedents are to the contrary, see cases cited supra note 1, we affirm the downward departure 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 the extent that the trial court’s quotation from State v. Daughtry, 505 So. 2d 537, 539 (Fla. 4th DCA), review dismissed, 511 So. 2d 999 (Fla.1987), could be read to constitute a finding that the defendant was intoxicated from the use of drugs during the actual commission of each offense, there is no substantial competent evidence to support that finding, as the defendant did not so testify and there is no other evidence so to indicate.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Traster, 610 So. 2d 572 (Fla. 4th DCA 1992)…ne is legally sufficient to support the trial court’s finding. State v. Johnson, 573 So. 2d 127, 128 (Fla. 4th DCA 1991). A defendant is not required to prove his drug addiction by expert testimony to support a downward departure. State v. Stutsman, 566 So. 2d 880 (Fla. 3d DCA 1990). The trial court’s finding that appellee was under the influence of steroids at the time of the crime is supported by a preponderance of the evidence. We also find that the evidence supports the trial court’s finding regarding Mr…
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State v. Parker, 733 So. 2d 1074 (Fla. 5th DCA 1999)…v. Gordon, 645 So. 2d 140, 142 (Fla. 3d DCA 1994). Compare, Herrin v. State, 568 So. 2d 920, 921 (Fla.1990); State v. Porter, 659 So. 2d 328 (Fla. 3d DCA 1995). This record contains little more than that. Porter. See also Bostick; State v. Stutsman, 566 So. 2d 880 (Fla. 3d DCA 1990). Sentence VACATED; REMANDED for resentencing pursuant to plea agreement. THOMPSON and ANTOON, JJ„ concur.…
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Fannin v. State, 751 So. 2d 158 (Fla. 2d DCA 2000)…increase the actual sentence in order to meet the guidelines. See, e.g., Betz v. State, 712 So. 2d 778 (Fla. 5th DCA 1998); Jones v. State, 664 So. 2d 1116 (Fla. 4th DCA 1995); Holmes v. State, 653 So. 2d 464 (Fla. 1st DCA 1995); State v. Stutsman, 566 So. 2d 880 (Fla. 3d DCA 1990). However, this court has cited Bra-nam in numerous cases to reverse consecutive minimum mandatory sentences [*161] where such stacking resulted in a sentence which exceeded the guidelines. See, e.g., Timonere v. State, 666 So. 2d…
Authorities Cited (11 total)
- Barbera v. State, 505 So. 2d 413 (Fla. 1987)
- Branam v. State, 554 So. 2d 512 (Fla. 1990)
- State v. Mesa, 520 So. 2d 328 (Fla. 3d DCA 1988)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Daughtry, 505 So. 2d 537 (Fla. 4th DCA 1987)
- State v. Bledsoe, 538 So. 2d 94 (Fla. 3d DCA 1989)
- State v. Herrin, 555 So. 2d 1288 (Fla. 2d DCA 1990)
- Aleta Shoemaker v. Shoemaker, 523 So. 2d 178 (Fla. 3d DCA 1988)
- State v. Wilson, 523 So. 2d 178 (Fla. 3d DCA 1988)