STATE OF FLORIDA, APPELLANT,
v.
ELIAS ECI O'DORLE, APPELLEE

Fla. 2d DCA | 1999-07-09
No. 98-02473
THREADGILL, A.C.J., and FULMER, J., Concur.
738 So. 2d 987 Florida District Court of Appeal, Second District (1999) Positive Treatment
Cited by 6 cases

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Holding

The court held that neither of the sentencing judge's reasons for downward departure sentences was valid under the circumstances.

Facts & Procedural History

The State appealed downward departure sentences granted to Elias O'Dorle over objection. The sentencing judge cited O'Dorle's substance abuse and the …

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Topics
Capacity To Conform Conduct To Law Substance Abuse Downward Departure Sentence Downward Departure

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Opinion of the Court
BLUE, Judge.

BLUE, Judge.

The State appeals the downward departure sentences that Elias O’Dorle received over the State’s objection. The sentencing judge gave two reasons for the departure sentences. Because neither was a valid departure reason in this case, we reverse.

The first reason, the capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired,” was based on O’Dorle’s substance abuse problems. The basis for this reason was improper because “[a] defendant’s substance abuse or addiction ... does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines.” § 921.0016(5), Fla. Stat. (1997). See State v. Sanders, 728 So. 2d 777 (Fla. 2d DCA 1999); State v. Brown, 717 So. 2d 625 (Fla. 5th DCA 1998). O’Dorle’s offenses — four residential burglaries — occurred after the effective date of the above-referenced statute.

The second departure reason, “the need for payment of restitution to the victim outweighs the need for a prison sentence,” is not supported by the record. See Banks v. State, 24 Fla. L. Weekly S177, 732 So. 2d 1065 (Fla.1999) (reiterating two-step process for deciding when to depart from the guidelines). The amount of restitution was minor — only $112.62. We conclude that the need for restitution in this case does not outweigh the need for imprisonment.

Accordingly, we reverse the departure sentences. It is not clear from the record whether the pleas were negotiated with the court or were “open” pleas. If the pleas were “negotiated,” on remand, O’Dorle should be given an opportunity to withdraw his pleas.

Departure sentences reversed and the cases remanded for further proceedings.

THREADGILL, A.C.J., and FULMER, J., Concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999)
    …utweighs the need for punishment or imprisonment. In this case, there was no evidence or testimony that the victim of the crime — the store — had a need for restitution of the $200 as a result of its loss related to the crimes. See State v. O’Dorle, 738 So. 2d 987 (Fla. 2d DCA 1999). The manager of the store did testify she thought Bleckinger was a good employee. She stated she knew he was having an economically difficult time supporting his family, and meeting the requirements of restitution orders issued in…
  • State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000)
    …representation that Barnes needed drug treatment and that the Polk County court had ordered such treatment. However, a defendant’s need for drug treatment is no longer a valid departure basis. See § 921.0016(5), Fla. Stat. (1997); State v. O’Dorle, 738 So. 2d 987, 987 (Fla. 2d DCA 1999). When Barnes’ counsel advised the trial judge of the Polk County probation violation sentence, the trial judge observed, “They’re so liberal over there. I’ll give him ... since he’s already gotten sentenced over there ... fi…
  • State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000)
    …g intoxication at the time of the offense, is not a mitigating factor under subsection (4) and does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines. See also State v. O’Dorle, 738 So. 2d 987 (Fla. 2d DCA 1999); State v. Sanders, 728 So. 2d 777 (Fla. 2d DCA 1999); State v. Brown, 717 So. 2d 625 (Fla. 5th DCA 1998). The third ground for departure was based on Beck’s need for alcohol treatment. Under section 921.0016(4)(d), Florida Statut…

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