State v. Liataud, No. 90-3221

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; ANSTEAD; ANSTEAD; PER CURIAM; ANSTEAD; ANSTEAD
Citation587 So.2d 1155
Decision Date17 July 1991
Docket NumberNo. 90-3221
PartiesSTATE of Florida, Appellant, v. Jean Max LIATAUD, Appellee. 587 So.2d 1155, 16 Fla. L. Week. D1846, 16 Fla. L. Week. D2245

Page 1155

587 So.2d 1155
STATE of Florida, Appellant,
v.
Jean Max LIATAUD, Appellee.
No. 90-3221.
587 So.2d 1155, 16 Fla. L. Week. D1846, 16 Fla. L. Week. D2245
District Court of Appeal of Florida,
Fourth District.
July 17, 1991.
On Denial of Rehearing
Aug. 28, 1991.

Appeal from the Circuit Court for Broward County; J. Leonard Fleet, Judge.

Page 1156

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dawn S. Wynn, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.

PER CURIAM.

Reversed and remanded for further proceedings in accord with this court's opinion in State v. Baxter, 581 So.2d 937 (Fla. 4th DCA, 1991).

HERSEY and WARNER, JJ., concur.

ANSTEAD, J., specially concurring.

ANSTEAD, Judge, specially concurring.

At issue is whether the sentencing provisions of section 893.13(1)(e), Florida Statutes (1989), should apply or whether the provisions of section 397.12 authorized the trial court to place appellee in a treatment program instead of prison. Except for the precedent of Baxter, I would affirm and approve the trial court's well-reasoned order.

Although it can be argued that this is another case of the left hand of the legislature not knowing what the right hand is doing, I believe the clear expression of section 397.12, Florida Statutes (1989) controls and grants the trial court the authority to act as it did:

When any person, including any juvenile, has been charged with or convicted of a violation of any provision of chapter 893, or of a violation of any law committed under the influence of a controlled substance, the court, Department of Health and Rehabilitative Services, Department of Corrections, or Parole Commission, whichever has jurisdiction over that person, may in its discretion require the person charged or convicted to participate in a drug treatment program licensed by the department under the provisions of this chapter. If referred by the court, the referral may be in lieu of or in addition to final adjudication, imposition of any penalty or sentence, or any other similar action. If the accused desires final adjudication, his constitutional right to trial shall not be denied. The court may consult with or seek the assistance of any agency, public or private, or any person concerning such a referral. Assignment to a drug program may be contingent upon budgetary considerations and availability of space.

(Emphasis supplied).

Consistent with these provisions, the trial court's order provides:

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 in the premises, it is,

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

(1) The record shows Defendant is a thirty-six (36) [year old] black male, with no prior arrest record, who purchased two (2) "rocks" of crack cocaine for personal use on April 12, 1990. This cocaine was purchased from Detention Aide Raymond Hicks, who is not a certified police officer. However, Mr. Hicks was 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 Detention Aide was selling crack cocaine, 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 school-yard statute, F.S. 893.12(1)(e), came into effect in 1987.

(2) Evidence shows that Defendant did suffer 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 judgment was severely compromised. See Barbera v. State, 505

Page 1157

So.2d 413 (Fla.1987), and State v. Herrin, 555 So.2d 1288 (Fla. 2d DCA 1990).

(3) 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 48 (Fla.1988).

(4) The record reflects that the Defendant has lived in Dade and Broward Co. for the past 6 years and is not familiar with Fort Lauderdale, Florida, and was in such an intoxicated state that he did not fully realize that he was near a school. Indeed, the arrest occurred at 7:10 p.m., after school hours. There was no evidence Defendant knew he was within 1,000 feet of a school, nor is there any evidence of school activities taking place, or any 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 State v. Regan, 15 FLW 1928 [1938] [564 So.2d 1208] (Fla. 2d DCA 1990).

(5) 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...

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12 practice notes
  • Scates v. State, No. 78533
    • United States
    • United States State Supreme Court of Florida
    • July 23, 1992
    ...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), review granted, 593 So.2d 1052 Section 893.13(1)(e)(1) provides that individuals convicted of manufacturing, selling, deliv......
  • State v. Manning, No. 91-0939
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 1992
    ...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 DCA 1991), juris. accepted, No. 78,626, 593 So.2d 1052 (Fla. Feb. 12, 1991); State v. Baumgardner, 587 So.2d 1147 (Fla. 4th DCA 1991);......
  • State v. Scates, No. 90-3174
    • United States
    • Court of Appeal of Florida (US)
    • August 21, 1991
    ...added the three year minimum mandatory clause to that section. However, we note Judge Anstead's special concurrence in State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA 1991), and we are not unsympathetic to the premise that, but for this court's opinions in Lane, Baxter, and now Liataud, ther......
  • State v. Vola, No. 91-0273
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1991
    ...of legislative policy.' " Ross, 447 So.2d at 1382 (citations omitted). But see Judge Anstead's special concurrence in State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA REVERSED AND REMANDED. GLICKSTEIN, C.J., and LETTS, J., concur. ANSTEAD, J., concurs specially with opinion. ANSTEAD, Judge, c......
  • Request a trial to view additional results
12 cases
  • Scates v. State, No. 78533
    • United States
    • United States State Supreme Court of Florida
    • July 23, 1992
    ...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), review granted, 593 So.2d 1052 Section 893.13(1)(e)(1) provides that individuals convicted of manufacturing, selling, deliv......
  • State v. Manning, No. 91-0939
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 1992
    ...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 DCA 1991), juris. accepted, No. 78,626, 593 So.2d 1052 (Fla. Feb. 12, 1991); State v. Baumgardner, 587 So.2d 1147 (Fla. 4th DCA 1991);......
  • State v. Scates, No. 90-3174
    • United States
    • Court of Appeal of Florida (US)
    • August 21, 1991
    ...added the three year minimum mandatory clause to that section. However, we note Judge Anstead's special concurrence in State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA 1991), and we are not unsympathetic to the premise that, but for this court's opinions in Lane, Baxter, and now Liataud, ther......
  • State v. Vola, No. 91-0273
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1991
    ...of legislative policy.' " Ross, 447 So.2d at 1382 (citations omitted). But see Judge Anstead's special concurrence in State v. Liataud, 587 So.2d 1155 (Fla. 4th DCA REVERSED AND REMANDED. GLICKSTEIN, C.J., and LETTS, J., concur. ANSTEAD, J., concurs specially with opinion. ANSTEAD, Judge, c......
  • Request a trial to view additional results

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