State v. Herrin

Decision Date19 January 1990
Docket NumberNo. 89-01389,89-01389
Parties15 Fla. L. Weekly D231 STATE of Florida, Appellant, v. Michael L. HERRIN, Appellee.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Asst. Atty. Gen., Tampa, for appellant.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellee.

PARKER, Judge.

The state appeals the trial court's downward departure from the established range under the sentencing guidelines. We reverse.

Herrin pleaded guilty to purchasing cocaine within 1,000 feet of a school in October 1988. Herrin testified that he was addicted to cocaine in 1986 at which time he completed a three-month rehabilitation program. Herrin then testified that at the time he committed the offense, he was having social problems and was depressed. Herrin committed this crime by going to a place where rock cocaine was being sold and then purchasing ten dollars worth of cocaine. He described his actions as "very stupid." Herrin further testified that he had used no cocaine between his rehabilitation in 1986 and the time he committed this crime.

Herrin's sentencing guidelines range was three and one-half to four and one-half years. The trial court, however, sentenced Herrin to two years' community control to be followed by one 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 also complete the drug treatment program at Tri-County."

In Barbera v. State, 505 So.2d 413 (Fla.1987), our supreme court recognized that intoxication or substance abuse can justify a downward departure from the recommended guidelines sentence. The Barbera court stated We do not ... 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.

Barbera, 505 So.2d at 413-14.

The supreme court's reasoning is not entirely clear; however, the facts in Barbera may assist with the understanding of the holding. Barbera pleaded guilty to a charge of attempted murder. Barbera had drunk a case of beer before stabbing his victim, and his drunken state was the central factor in a defense-filed psychological report. In interpreting Barbera, other district courts have generally held that a trial court may depart downward from the sentencing guidelines recommendation if intoxication or dependency on drugs or alcohol caused the defendant to commit the crime or was a factor in the commission of the crime. See, e.g., State v. Joseph, 543 So.2d 405 (Fla. 4th DCA 1989); State v. Bledsoe, 538 So.2d 94 (Fla. 3d DCA 1989); State v. Salony, 528 So.2d 404 (Fla. 3d DCA), review denied, 531 So.2d 1355 (Fla.1988); State v. Wilson, 523 So.2d 178 (Fla. 3d DCA 1988); State v. Mesa, 520 So.2d 328 (Fla. 3d DCA 1988); State v. Daughtry, 505 So.2d 537 (Fla. 4th DCA), review dismissed, 511 So.2d 999 (Fla.1987).

The other district courts have not construed the Barbera holding as limited as we believe it should be construed. In our opinion, a defendant must be required to demonstrate more than drug or alcohol dependency or intoxication at the time of the commission of the crime. Otherwise, the sentencing guidelines are meaningless and should be abolished in cases where defendants attempt to attribute their actions to an alcohol or drug abuse problem.

In developing a precise standard of when a Barbera downward departure should apply, we hold that where competent and substantial evidence reflects that alcohol or drugs, or a combination thereof, so clouded the defendant's mind at the time that he committed the crime as to impair his judgment, but without rising to the level of incompetence or insanity, that factor may support a mitigation of the sentence. * This approach finds support in this court's case of Smith v. State, 532 So.2d 50 (Fla. 2d DCA 1988), where it was observed:

The court found that Smith's acts were motivated by "an extreme emotional condition." The state suggests that his conduct was carefully devised with full awareness of the possible consequences and that his mental status displays at best a level of "antisocial behavior ... inherently to blame for the commission of every criminal offense." We find ample evidence in the record to support the trial court's finding that Smith's emotional or intellectual state, while not permitting a finding of incompetence or insanity, disclosed psychological problems justifying mitigation.

Smith, 532 So.2d at 53.

Regardless of our disagreement with the courts' liberal interpretation of Barbera, the trial judge's downward departure for this reason cannot be upheld, because the evidence does not support the finding that Herrin was a current drug abuser or that he was impaired at the time he committed the crime. We now turn to the second reason articulated to support the departure.

The trial court also listed that Herrin was "amenable to rehabilitation." In our review, we can find no case in Florida that permits a downward departure for that reason. The case which leans most in that direction is State v. Forbes, 536 So.2d 356 (Fla. 3d DCA 1988), where the third district held that the defendant's motivation to be rehabilitated was a valid reason for a downward departure. In Forbes the court found that "the record revealed that the defendant ... [was] strongly motivated to rehabilitate and overcome his cocaine habit and that his chances for doing so ... [were] excellent." Forbes, 536 So.2d at 357. We view that this reason encompassed more than mere amenability to rehabilitation. Our view is buttressed by the fact that prior to the Forbes decision, the third district held that the defendant's history of drug problems and the defendant's potential for rehabilitation were not valid grounds for a downward departure. State v. Thomas, 516 So.2d 1058 (Fla. 3d DCA 1987). Further, in a case subsequent to Forbes, the third district recognized that completion of a court-ordered rehabilitation program did not support a downward departure. State v. Mathis, 541 So.2d 744 (Fla. 3d DCA 1989).

This court has considered rehabilitation a factor in support of a downward departure but only in a very restrictive sense. In State v. Twelves, 463 So.2d 493 (Fla. 2d DCA 1985), this court approved a downward departure where competent expert evidence presented to the trial court disclosed that the defendant, a combat veteran, suffered from post-traumatic stress disorder which could be remedied by drug rehabilitation and veterans outreach programs. There was no such evidence presented in the instant case which would justify a downward departure. Following a review of the cases which have discussed a downward departure from the sentencing guidelines, we find the trial court's statement that Herrin is amenable to rehabilitation, without more, to be an insufficient reason to support the departure.

For the foregoing reasons, we reverse the trial court's downward departure from the sentencing guidelines and remand for sentencing within the three and one-half and four and one-half year range.

Reversed and remanded.

FRANK, J., concurs.

LEHAN, A.C.J., concurs specially with opinion.

LEHAN, Acting Chief Judge, concurring specially.

I concur in the result but not entirely with the majority opinion. I respectfully write separately regarding drug abuse as a reason for a downward departure.

My reasons for writing separately are outlined as follows and explained further below. First, Barbera v. State, 505 So.2d 413 (Fla.1987), can be logically interpreted to provide full support for our result, as do certain district court of appeal cases, which is not shown by the majority opinion. Second, the type of impairment by drug abuse which may be a sufficient reason for a downward departure is in my view somewhat different from that described in the majority opinion. Third, attention should be given, I believe, to why there are important, albeit potentially close, distinctions between what type of drug abuse is, and what type is not, a sufficient reason for a downward departure and what those distinctions are.

Whether drug abuse of one type or another may be a sufficient reason for a downward departure is an issue apparently arising with some frequency in the trial courts. The above outlined second and third reasons could be materially significant to a trial court in deciding whether or not there is a valid reason in a particular case for a downward departure.

In Barbera, a case involving alcohol abuse, the supreme court said, as quoted in the majority opinion in this case,

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.

Id. at 413-14. Thus, the supreme court appears to have thought of alcohol intoxication and what it referred to as substance, i.e., drug, abuse as alike, or at least in the same vein, in stating what may be a sufficient reason for a downward departure from the sentencing guidelines. Accordingly, the kind of drug abuse which may be considered to be a sufficient reason may be determined by analogizing the kind of alcohol abuse--intoxication--which was so considered in that case. What the supreme court meant by intoxication was in...

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  • State v. Regan
    • United States
    • Court of Appeal of Florida (US)
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    ...Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent. GRIMES, Justice. We review the decision in State v. Herrin, 555 So.2d 1288 (Fla. 2d DCA 1990), because of its conflict with decisions of other district courts of appeal cited later in this opinion. We have jurisdicti......
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    ...such objection was made below. It is true, as the State contends, that in Barbera v. State, 505 So.2d 413 (Fla.1987) and State v. Herrin, 555 So.2d 1288 (Fla. 2d DCA), jurisdiction accepted, 560 So.2d 233 (Fla.1990) (table), expert testimony was offered, but that is not the sole means of pr......
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