STATE OF FLORIDA, APPELLANT,
v.
JOSE G. LAZO, APPELLEE
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The State appealed a trial court's imposition of drug offender probation for a felony driving-while-license-suspended charge. The appellate court reversed, holding that drug offender probation under Florida Statute § 948.034(2) applies only to specifically enumerated drug offenses, not to the driving charge, and that drug addiction is no longer a valid reason for downward departure sentencing.
The trial court erred in imposing drug offender probation on the felony driving-while-license-suspended charge because § 948.034(2) applies only to violations of specifically enumerated offenses, which do not include driving on a suspended or revoked license. Additionally, drug addiction and amenability to rehabilitation are no longer valid reasons for downward departure sentences under § 921.0016(5), Florida Statutes.
[1] Drug offender probation may only be imposed for offenses specifically enumerated in the statute authorizing such probation.
[2] Driving while license suspended or revoked is not an offense for which drug offender probation may be imposed under section 948.034(2), Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“The plain language of section 948.034(2) unambiguously indicates that it applies only to violations of the specific provisions referenced in the statute. Possession of cocaine is one of the enumerated offenses. Driving on a suspended or revoked driver's license is not.”
Establishes that the drug offender probation statute applies only to enumerated drug offenses, not to driving-related charges.
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Join FLexlaw to unlock all legal intelligenceJose G. Lazo pleaded nolo contendere to possession of cocaine (a third-degree felony under § 893.13(6)(a)) and felony driving while license suspended …
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THREADGILL, Acting Chief Judge.
The State appeals the imposition of drug offender probation for the offense of driving while license suspended or revoked. We reverse.
On September 15, 1999, the appellee, Jose G. Lazo, entered a plea of nolo contendere to possession of cocaine, a violation of section 893.13(6)(a), Florida Statutes (1997), and felony driving while license suspended or revoked, a violation of sections 322.34(5) and 322.264, Florida Statutes (1997). Both offenses were third-degree felonies. The guidelines scoresheet, which scored possession of cocaine , as the primary offense, indicated a total guidelines score of 127.9 for a sentencing range of 74.925 to 124.875 months in prison. At sentencing, over the State’s objection, the trial court sentenced Lazo on both offenses to concurrent four-year terms of drug offender probation pursuant to section 948.034(2), Florida Statutes (1997).
On appeal, the State concedes that the trial court properly exercised its discretion to impose drug offender probation for the cocaine possession charge, but argues that the trial court erred in imposing concurrent drug offender probation on the felony DWLSR charge. We agree.
Section 948.034(2) provides that any person who violates section 893.13(6)(a) or other specifically enumerated sections may, in the discretion of the trial court, be placed on drug offender probation in lieu of serving a term of imprisonment. The plain language of section 948.034(2) unambiguously indicates that it applies only to violations of the specific provisions referenced in the statute. Possession of cocaine is one of the enumerated offenses. Driving on a suspended or revoked driver’s license is not. The trial court incorrectly reasoned that the statute applied to the felony DWLSR in this instance, simply because Lazo was sentenced on that charge at the same time he was sentenced on the cocaine possession charge. The trial court therefore erred in imposing drug offender probation on the DWLSR offense, as the statute does not apply to that offense.
Nor can drug offender probation on the felony DWLSR be justified as a downward departure sentence, based on Lazo’s apparent drug addiction. A defendant’s drug addiction and amenability to rehabilitation are no longer valid reasons for a downward departure from sentencing guidelines. See § 921.0016(5), Fla. Stat. (1997); see also State v. Norris, 724 So. 2d 630 (Fla. 5th DCA 1998).
Therefore, based on the foregoing reasons, we reverse and remand this cause for resentencing.
WHATLEY and NORTHCUTT, JJ., Concur.
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Alethia Jones v. State, 813 So. 2d 22 (Fla. 2002)…4, Laws of Fla., provided that addiction was a valid departure reason. However, the Legislature removed addiction as a valid ground for downward departure. See ch. 97-194, § 41, at 3728, Laws of Fla. (codified as section 921.0026(3)); State v. Lazo, 761 So. 2d 1244, 1245 (Fla. 2d DCA 2000) ("A defendant’s drug addiction and amenability to rehabilitation are no longer valid reasons for a downward departure from sentencing guidelines.”); State v. Norris, 724 So. 2d 630 (Fla. 5th DCA 1998) (drug addition is no lo…
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Ellis v. State, 816 So. 2d 759 (Fla. 4th DCA 2002)…ies only when a defendant is being sentenced for certain chapter 893 drug-related offenses. See Jones v. State, 27 Fla. L. Weekly S82, S85 n. 2 (Fla. Jan. 24, 2002) (section 948.034 concerns certain chapter 893 drug-related offenses); State v. Lazo, 761 So. 2d 1244, 1244 (Fla. 2d DCA 2000), rev. denied, 790 So. 2d 1105 (Fla.2001) (“The plain language of section 948.034(2) unambiguously indicates that it [*762] applies only to violations of the specific provisions referenced in the statute.”). Subsection (1) ap…1 / 2
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State v. Roper, 915 So. 2d 622 (Fla. 5th DCA 2005)…. A plain reading of the statute reflects that it applies only to violations of sections 893.13(2)(a) or (6)(a), Florida Statutes, which prohibit the purchase or pos- ■ session of certain controlled substances, including cocaine. See State v. Lazo, 761 So. 2d 1244 (Fla. 2d DCA 2000). As Mr. Roper pled guilty to charges involving delivery of cocaine and possession of cocaine with intent to sell or deliver, in violation of section 893.13(l)(a)(l), it appears that the [*624] trial court was not authorized to use…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morris v. Morris, 724 So. 2d 630 (Fla. 3d DCA 1998)