State v. Fulton, 4D00-2765.

• Decision Date: 31 January 2001
• Docket Number: No. 4D00-2765.,4D00-2765.
• Citation: 777 So.2d 1134
• Parties: STATE of Florida, Appellant, v. Harold Bernard FULTON, Appellee.
• Court: Florida District Court of Appeals

777 So.2d 1134

STATE of Florida, Appellant, v. Harold Bernard FULTON, Appellee.

No. 4D00-2765.

District Court of Appeal of Florida, Fourth District.

January 31, 2001.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.

GROSS, J.

Appellee, Harold Fulton, was charged by amended information with two counts of sale of cocaine within 1,000 feet of a place of worship or a convenience business. He pled guilty to both counts, with no agreement as to a specific sentence to be imposed. At the plea conference, the court informed Fulton that each of the counts to which he was entering a plea was a first degree felony punishable by up to thirty years in state prison. The court told the defendant that the minimum sentence he could receive, absent a downward departure, was 70.5 months in the Department of Corrections. Fulton moved for a downward departure sentence based upon his "strong motivation to be rehabilitated" and his "effort to get the help that he needs." The court adjudicated Fulton guilty of both counts. On July 20, 2000, the court sentenced him to concurrent downward departure sentences of one year in the county jail, ordering that he complete the drug farm program during the year and then complete all subsequent residential treatment programs. The court also placed Fulton on probation for eight years. The court based its downward departure on "[c]ompelling evidence that [Fulton] can be [and] has been rehab[ilitated] from narcotic addi[c]tion in P.B.S.O. Drug Farm" and "[t]he defendant requires specialized treatment for a substance abuse or addiction, and the defendant is amenable to treatment." The state timely appealed the downward departure sentence.

Section 921.0016, Florida Statutes (2000), was amended effective July 1, 1997 to remove drug addiction or amenability to treatment for addiction as a basis for imposing a downward departure sentence. Section 921.0016 now provides:

(4) Mitigating circumstances under which a departure from the sentencing guidelines is reasonably justified include, but are not limited to:

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(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.

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(5) A defendant's substance abuse or addiction, including 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 § 921.0026(3), Fla.Stat. (2000) (providing that defendant's substance abuse or addiction is not a mitigating factor and "does not, under any circumstances, justify a downward departure from the permissible sentencing range").

Fulton was sentenced...