State v. Barbera

• Decision Date: 30 April 1986
• Docket Number: No. 85-2126,85-2126
• Citation: 487 So.2d 1184,11 Fla. L. Weekly 1003
• Parties: 11 Fla. L. Weekly 1003 STATE of Florida, Appellant, v. James Patrick BARBERA, Appellee.
• Court: Florida District Court of Appeals

Page 1184

487 So.2d 1184

11 Fla. L. Weekly 1003

STATE of Florida, Appellant, v. James Patrick BARBERA, Appellee.

No. 85-2126.

District Court of Appeal of Florida,

Fourth District.

April 30, 1986.

Rehearing Denied May 22, 1986.

Jim Smith, Atty. Gen., Tallahassee and Noel A. Pelella, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender and Jeffrey Anderson, Asst. Public Defender, West Palm Beach, for appellee.

LETTS, Judge.

The State here appeals the decision of the trial judge to depart downward from the sentencing guidelines. We reverse.

The defendant pled guilty to the attempted murder of his ex-wife. He had consumed a whole case of beer, after which he stabbed her. A psychological report concluded that the defendant had an alcoholic personality and certain destructive behavioral traits common to alcoholics. The report also said that the defendant was "severely withdrawn, undersocialized, passive, dependent, anxious and depressed." Based on her observations, it was the psychiatrist's opinion that the defendant suffered a "brief reactive psychosis" which led to the stabbing of his ex-wife. This report, coupled with the opinion of the Director of Admissions for the Comprehensive Alcoholic Rehabilitation program in West Palm Beach, resulted in the defendant agreeing to go for treatment in a program in New York where he would have the support of his family and would be many miles away from his ex-wife.

Pursuant to these facts, the trial court adopted the alternative sentencing plan resulting in the defendant being sentenced to 364 days incarceration and ten years probation with the special condition that he attend the substance abuse treatment program in New York. The guidelines called for seven to twelve years.

Distilled to its essence, the defendant's argument is that he was too drunk at the time of the attack to know what he was doing, having just on the day of the stabbing received his divorce papers. According to his testimony, he started drinking and the next thing he remembered was standing over his ex-wife with a knife in his hand and blood on his clothes. While such an argument might be made in his defense at trial, it does not constitute a good and sufficient reason for departing downward under the guidelines. See Hendrix v. State, 475 So.2d 1218 (Fla.1985); Albritton v. State, 476 So.2d 158 (Fla.1985) and State v. Mischler, 488 So.2d 523 (Fla. 1986).

REVERSED AND REMANDED.

HERSEY, C.J., and GUNTHER,...