Barbera v. State
| Decision Date | 19 March 1987 |
| Docket Number | No. 68942,68942 |
| Citation | 505 So.2d 413,12 Fla. L. Weekly 130 |
| Parties | 12 Fla. L. Weekly 130 James Patrick BARBERA, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for petitioner.
Robert A. Butterworth, Jr., Atty. Gen., and Noel A. Pelella, Asst. Atty. Gen., West Palm Beach, for respondent.
We have for review State v. Barbera, 487 So.2d 1184 (Fla. 4th DCA 1986), because of conflict with decisions of this Court and the other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result reached by the district court, i.e., a remand for resentencing, but we quash that court's opinion.
Barbera pled guilty to the attempted murder of his ex-wife. He had drunk a case of beer prior to stabbing her, and his drunkenness became a central factor in a psychological report filed by the defense. Partly because of this report Barbera agreed to enter an alcoholic treatment program in New York where he would be close to his family and far from his ex-wife. The guidelines recommended a sentence of seven to twelve years. The trial court, however, adopted the defense's alternative sentencing program and sentenced Barbera to 364 days in county jail followed by a ten-year probation conditioned on his attending the New York program. The district court reversed for resentencing, holding that Barbera's alcoholism and drunkenness at the time of the crime did "not constitute a good and sufficient reason for departing downward under the guidelines." 487 So.2d at 1185.
Intoxication and drug dependency have been found not to be clear and convincing reasons for departing upwards from a recommended guidelines sentence. Scurry v. State, 489 So.2d 25 (Fla.1986); Vance v. State, 475 So.2d 1362 (Fla. 5th DCA 1985). We do not, however, agree with the district court that intoxication or substance abuse cannot be a clear and convincing reason for a downward departure. The defense of intoxication could be used by a jury to justify convicting a defendant of a lesser offense. If a trial court expresses valid reasons for doing so, we see no impediment to using intoxication to mitigate a recommended sentence. We therefore quash the district court's opinion.
We approve the remand for resentencing, however, because the trial court did not provide written reasons for departure as required by the sentencing guidelines. Fla.R.Crim.P. 3.701 d.11. The following colloquy occurred at Barbera's sentencing:
MR. NEWHALL [assistant state attorney]:--let me just ask you if you would state on the record your reasons for going below the guidelines in this case.
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...to do so); see also Pease v. State, 712 So.2d 374 (Fla.1997).2 This Court noted that it was receding from its decision in Barbera v. State, 505 So.2d 413 (Fla.1987) (permitting a trial judge to provide written reasons for departure on ...
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...year probation. In support of its downward departure, the trial court stated: "The Defendant suffered from substance abuse. Barbera v. State, 505 So.2d 413 (Fla.1987). The Defendant is amenable to rehabilitation, as is evidenced by his voluntary entry into drug treatment. The Defendant will......
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