State v. Baxter, No. 90-3175

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation581 So.2d 937
PartiesSTATE of Florida, Appellant, v. Joseph BAXTER, Appellee. 581 So.2d 937, 16 Fla. L. Week. D1561
Docket NumberNo. 90-3175
Decision Date12 June 1991

Page 937

581 So.2d 937
STATE of Florida, Appellant,
v.
Joseph BAXTER, Appellee.
No. 90-3175.
581 So.2d 937, 16 Fla. L. Week. D1561
District Court of Appeal of Florida,
Fourth District.
June 12, 1991.
On Motion to Vacate Opinion July 16, 1991.
Rehearing Denied July 16, 1991.

Appeal from the Circuit Court for Broward County; Robert W. Tyson, Jr., Judge.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellant.

No appearance for appellee.

PER CURIAM.

The state appeals appellee's sentence to probation. He plead guilty to purchasing cocaine within 1,000 feet of a school which called for a three year mandatory minimum sentence. Sec. 893.13(1)(3)1, Fla.Stat. (1989). His recommended guidelines sentence was five and one half to seven years in jail. The trial judge relied on section 397.12 of the Florida Statutes and appellee's drug

Page 938

and alcohol addiction as the reasons for the downward departure. We reverse and remand with directions to the trial judge to sentence appellee to the mandatory minimum sentence.

A defendant's drug and alcohol addiction can be valid reasons for a downward departure under the sentencing guidelines. Barbera v. State, 505 So.2d 413 (Fla.1987). However, a mandatory sentence takes precedence over a guideline sentence. Fla.R.Crim.P. 3.701 d.9. Therefore, a trial judge cannot downward depart from a mandatory sentence even with valid reasons for departure.

Further, section 397.12 only relates to defendants who have been convicted of possessing illegal drugs. State v. Edwards, 456 So.2d 575 (Fla. 2d DCA 1984); see also State v. Ross, 447 So.2d 1380 (Fla. 4th DCA), review denied, 456 So.2d 1182 (Fla.1984) (section 397.12 not exception to mandatory minimum sentence for firearms violations). Thus, the trial judge had no authority to sentence appellant under that section.

REVERSED AND REMANDED WITH DIRECTIONS FOR RESENTENCING.

LETTS, GUNTHER and GARRETT, JJ., concur.

ON MOTION TO VACATE DECISION

ORDERED that appellee's June 21, 1991 motion to vacate decision and appoint counsel for appellee, an indigent is hereby denied without prejudice to appellee to seek postconviction relief in the trial court.

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25 practice notes
  • Scates v. State, No. 78533
    • United States
    • United States State Supreme Court of Florida
    • July 23, 1992
    ...the imposition of a minimum mandatory sentence of three years. Accord State v. Lane, 582 So.2d 77 (Fla. 4th DCA1991); State v. Baxter, 581 So.2d 937 (Fla. 4th DCA1991), vacated on other grounds, Baxter v. Letts, 592 So.2d 1089 (Fla.1992); State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA1991),......
  • State v. Traster, No. 91-2947
    • United States
    • Court of Appeal of Florida (US)
    • December 9, 1992
    ...sentence." Id. at 414. This standard has also been interpreted to include drug use as a valid ground for departure. See State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991); State v. Joseph, 543 So.2d 405 (Fla. 4th DCA 1989). Based upon the unrefuted testimony of Dr. Brannon the trial court c......
  • State v. Manning, No. 91-0939
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 1992
    ...appellant after his conviction of violation of sections 893.13(1)(e) and 893.03(2)(a)4, Florida Statutes (1991). See State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991), vacated on other grounds, Baxter v. Letts, 592 So.2d 1089 (Fla.1992). See also State v. Liataud, 587 So.2d 1155 (Fla. 4th ......
  • State v. Vola, No. 91-0273
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1991
    ...to prison." We reverse and remand for resentencing on the authority of State v. Lane, 582 So.2d 77 (Fla. 4th DCA 1991), State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991) and State v. Ross, 447 So.2d 1380 (Fla. 4th DCA 1984), rev. denied, 456 So.2d 1182 At issue is the inconsistency, or at ......
  • Request a trial to view additional results
25 cases
  • Scates v. State, No. 78533
    • United States
    • United States State Supreme Court of Florida
    • July 23, 1992
    ...the imposition of a minimum mandatory sentence of three years. Accord State v. Lane, 582 So.2d 77 (Fla. 4th DCA1991); State v. Baxter, 581 So.2d 937 (Fla. 4th DCA1991), vacated on other grounds, Baxter v. Letts, 592 So.2d 1089 (Fla.1992); State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA1991),......
  • State v. Traster, No. 91-2947
    • United States
    • Court of Appeal of Florida (US)
    • December 9, 1992
    ...sentence." Id. at 414. This standard has also been interpreted to include drug use as a valid ground for departure. See State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991); State v. Joseph, 543 So.2d 405 (Fla. 4th DCA 1989). Based upon the unrefuted testimony of Dr. Brannon the trial court c......
  • State v. Manning, No. 91-0939
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 1992
    ...appellant after his conviction of violation of sections 893.13(1)(e) and 893.03(2)(a)4, Florida Statutes (1991). See State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991), vacated on other grounds, Baxter v. Letts, 592 So.2d 1089 (Fla.1992). See also State v. Liataud, 587 So.2d 1155 (Fla. 4th ......
  • State v. Vola, No. 91-0273
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1991
    ...to prison." We reverse and remand for resentencing on the authority of State v. Lane, 582 So.2d 77 (Fla. 4th DCA 1991), State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991) and State v. Ross, 447 So.2d 1380 (Fla. 4th DCA 1984), rev. denied, 456 So.2d 1182 At issue is the inconsistency, or at ......
  • Request a trial to view additional results

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