State v. Jenkins, 90-2736

• Decision Date: 07 August 1991
• Docket Number: No. 90-2736,90-2736
• Citation: 584 So.2d 127
• Parties: STATE of Florida, Appellant, v. Howard JENKINS, Appellee. 584 So.2d 127, 16 Fla. L. Week. D2038
• Court: Florida District Court of Appeals

Page 127

584 So.2d 127

STATE of Florida, Appellant, v. Howard JENKINS, Appellee.

No. 90-2736.

584 So.2d 127, 16 Fla. L. Week. D2038

District Court of Appeal of Florida Fourth District.

Aug. 7, 1991.

Rehearing and Motion to Certify Question Denied Sept. 18,

1991.

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

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Mallorye Cunningham, Asst. Public Defender, West Palm Beach, for appellee.

PER CURIAM.

We reverse and remand for resentencing on the authority of State v. Baxter, 581 So.2d 937 (Fla. 4th DCA 1991), State v. Lane, 582 So.2d 77 (Fla. 4th DCA 1991) and State v. Ross, 447 So.2d 1380 (Fla. 4th DCA 1984). See also State v. Baumgardner, 16 F.L.W. D1734 (Fla. 4th DCA July 3, 1991).

REVERSED AND REMANDED.

GLICKSTEIN, C.J., and WALDEN, JAMES H., Senior Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, specially concurring.

I recognize we are bound by the decision in Baxter. However, I disagree with the holding in Baxter and were I free to do so, would approve the trial court's well-reasoned order which speaks for itself:

THIS CAUSE, having come before this Court on Defendant's Motion To Depart Downward From Presumptive Guideline Sentence And to Avoid The Minimum Mandatory Sentence And Sentence Defendant Alternatively Pursuant to F.S. 397.12, and the Court having heard testimony on the matter, reviewed the file, heard arguments of counsel, reviewed the law, and being otherwise duly advised, it is

ORDERED that said motion is hereby GRANTED. The reasons for granting such relief are as follows:

1. The record show Defendant is a forty-nine (49) year old black male with no prior arrest record who purchased one (1) "rock" of crack cocaine for personal use on February 15, 1990. This cocaine was purchased from an undercover Broward Sheriff's Office Deputy posing as a street level drug dealer who purposely positioned himself within 1,000 feet of Dillard High School. Further, the Court notes that said deputy was selling crack which was manufactured from cocaine in the Broward Sheriff's Office crime laboratory. The location of this reverse sting has been the site of numerous reverse stings ever since the 1,000 foot schoolyard statute, F.S. 893.12(1)(e), came into effect in 1987.

2. Evidence shows Defendant suffers from substance abuse addictions and was under the influence of alcohol at the time of his arrest. The Court finds Defendant did not have full control over his faculties and was impaired to the extent his judgement was severely compromised. See Barbara [Barbera] v. State, 505 So.2d 413, (Fla.1987) and State v. Herrin, 555 So.2d 1288 (Fla. 2d DCA 1990).

3. Defendant, if not already dependent, is a person who, by reason of repeated use, is in imminent danger of becoming dependent upon controlled substances. See F.S. 897.021(2) (Wests 1989).

4. The evidence shows that Defendant is not a threat to society but in fact desires treatment and rehabilitation for this addiction. See State v. Sachs, 526 So.2d (Fla.1988).

5. The record reflects that while Defendant has lived in Fort Lauderdale all his life, on the night in question he was in such an intoxicated state that he did not fully realize that he was near a school. Indeed the arrest occurred at 6:40 P.M., after school hours. There was no evidence that Defendant knew he was within 1,000 feet of a school nor is there any evidence of school activities taking place or school children in the area. The Court feels that the particular circumstances of this case ameliorate the level of Defendant's guilt and indicate less moral culpability. See Sate [State] v. Regan, 15 FLW 1928 [1938, 564 So.2d 1208] (Fla. 2d DCA 1990).

6. The Court further finds it is the policy of this State "to provide meaningful alternatives to criminal imprisonment for individuals capable of rehabilitation as useful citizens through techniques and programs" not available in the prison systems. F.S. 397.10 (West 1989). The legislature encourages trial judges to use their discretion in sentencing persons charged with a violation of Chapter 893 where there is evidence that the person charged is a drug abuser...