STATE OF FLORIDA, APPELLANT,
v.
ROBERT L. LEMON, JR., APPELLEE
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The State of Florida appealed a trial court's downward departure from sentencing guidelines for Robert L. Lemon, Jr., who pleaded nolo contendere to cocaine possession and sale charges. The appellate court reversed, holding that a defendant's substance abuse cannot justify a downward departure without evidence that the defendant is amenable to rehabilitation in a drug treatment program.
The court held that substance abuse cannot justify a downward departure from sentencing guidelines unless there is evidence that the defendant is amenable to rehabilitation in an alcohol or drug treatment program. Because the record contained no such evidence, the sentence was reversed and the case remanded for resentencing within the guidelines.
[1] A downward departure sentence based on drug addiction is not justified without evidence that the defendant is amenable to rehabilitation in a treatment program.
[2] Substance abuse that does not substantially impair a defendant's mind at the time of the offense cannot justify a downward departure sentence.
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Join FLexlaw to unlock all legal intelligence“Alcohol or substance abuse that does not substantially impair a defendant's mind at the time of the commission of the offense for which he is convicted cannot justify a downward departure unless a showing is made that the defendant is amenable to rehabilitation in an alcohol or drug treatment program in which he is placed as part of his sentence.”
Establishes the legal standard for when substance abuse can justify a downward departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceLemon was charged in two separate cases with four counts of cocaine possession and four counts of cocaine sale. He initially pleaded not guilty but ch…
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CAMPBELL, Acting Chief Judge.
Appellant, State of Florida, challenges the trial court’s order sentencing appellee, Robert L. Lemon, Jr., below the recommended guidelines sentence on the basis that he receive treatment for his drug addiction while incarcerated. We agree that there was no evidence that Lemon was amenable to rehabilitation and reverse his sentence.
Lemon was charged in two separate cases, each case containing charges of two counts of possession of cocaine and two counts of the sale of cocaine. He initially pled not guilty to all charges. Subsequently he changed his plea to nolo in exchange for a sentence of one year in the county jail, based upon the state’s original recommendation that he be sentenced to eighteen months incarceration in state prison or one year in the county jail or two years community control on the first of the two cases. At the change of plea hearing, however, the state informed the court that the offer initially made to Lemon did not include the offenses charged in the second case and that once those additional charges were scored, a mandatory prison term would result.
The trial court, however, accepted Lemon’s nolo plea and sentenced him on both cases to one year in county jail with drug treatment on each charge, all charges to run concurrent with each other. Alcohol or substance abuse that does not substantially impair a defendant’s mind at the time of the commission of the offense for which he is convicted cannot justify a downward departure unless a showing is made that the defendant is amenable to rehabilitation in an alcohol or drug treatment program in which he is placed as part of his sentence. Herrin v. State, 568 So. 2d 920 (Fla.1990); State v. Gordon, 645 So. 2d 140 (Fla. 3d DCA 1994), rev. denied, 652 So. 2d 816 (Fla.1995).
The record does not indicate that Lemon was under the influence at the time the offenses were committed, and the trial judge made no such finding. There was also no testimony indicating Lemon was amenable to rehabilitation. Herrin; Gordon; State v. Grononger, 615 So. 2d 869 (Fla. 4th DCA 1993).
Therefore, we reverse appellant’s sentence and remand for resentencing within the guidelines. On remand, Lemon should be given the opportunity to withdraw his plea.
PARKER and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996)…ree, that there was no evidence to support the trial court’s finding that appellee was amenable to rehabilitation. Herrin v. State, 568 So. 2d 920 (Fla.1990). Accordingly, we reverse and remand for resentencing within the guidelines. State v. Lemon, 664 So. 2d 1072 (Fla. 2d DCA 1995). Because, however, the sentence was the result of a plea agreement between appellee and the trial court, appellee should be given the opportunity to withdraw his plea on remand. State v. Bryant, 658 So. 2d 652 (Fla. 2d DCA 1995).…
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State v. Benjamin, 685 So. 2d 1335 (Fla. 2d DCA 1996)…because Benjamin required specialized treatment for his addiction, and he was amenable to such treatment. However, there was no evidence presented to support these two findings. See State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996); State v. Lemon, 664 So. 2d 1072 (Fla. 2d DCA 1995). Therefore, we reverse Benjamin’s sentence and remand for resentencing within the guidelines. In case number 94-00603, Benjamin admitted violating his probation order and community control order. In that case, the state correctly…
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State v. Holley, 702 So. 2d 601 (Fla. 2d DCA 1997)…olley required specialized treatment for her addiction, and she was amenable to such treatment. Holley agrees with the State that there was no evidence to support either finding. See State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996); State v. Lemon, 664 So. 2d 1072 (Fla. 2d DCA 1995). Therefore, we reverse Holley’s sentence and remand for resentencing within the guidelines. Since Holley’s sentence was the result of a plea agreement between Holley and the trial court, Holley should be given the opportunity to…
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- Herrin v. State, 568 So. 2d 920 (Fla. 1990)
- State v. Gordon, 645 So. 2d 140 (Fla. 3d DCA 1994)
- State v. Grononger, 615 So. 2d 869 (Fla. 4th DCA 1993)