State v. Vola, No. 91-0273

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM; GLICKSTEIN, C.J., and LETTS; ANSTEAD; ANSTEAD; PER CURIAM; GLICKSTEIN, C.J., and ANSTEAD; LETTS
• Citation: 591 So.2d 248
• Parties: STATE of Florida, Appellant, v. Salvatore VOLA, Appellee. 591 So.2d 248, 16 Fla. L. Week. D2246, 17 Fla. L. Week. D342
• Docket Number: No. 91-0273
• Decision Date: 28 August 1991

Page 248

591 So.2d 248 STATE of Florida, Appellant,
v.
Salvatore VOLA, Appellee. No. 91-0273. 591 So.2d 248, 16 Fla. L. Week. D2246, 17 Fla. L. Week. D342 District Court of Appeal of Florida,
Fourth District. Aug. 28, 1991.
On Rehearing Jan. 29, 1992.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.

PER CURIAM.

The defendant was charged with, and convicted of, purchasing cocaine within 1,000 feet of a public school contrary to section 893.13(1)(e)1, Florida Statutes (1989). The trial judge departed downward and sentenced the defendant under section 397.12, Florida Statutes (1989), because he felt "strongly" that section 397.12 provided a "meaningful alternative 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 (Fla.1984).

At issue is the inconsistency, or at a minimum, the tension, between two Florida Statutes. Section 893.13(1)(e)1 mandates a three year term of imprisonment when cocaine is purchased within 1,000 feet of a school. By contrast, section 397.12 authorizes the trial court to place a defendant in a drug treatment program rather than prison.

Page 249

In deciding to reverse, we considered whether we should certify the following question to the supreme court:

Does section 893.13(1)(e)1 take precedence over section 397.12?

Section 893.13(1)(e)1, states in pertinent part:

Except as authorized by this chapter, it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell ... a controlled substance in, on, or within 1,000 feet of ... a public or private elementary, middle, or secondary school. Any person who violates this paragraph ... is guilty of a felony of the first degree, ... and shall be sentenced to a minimum term of imprisonment of 3 calendar years....

(Emphasis added.)

Section 397.12, Florida Statutes (1989), on the other hand, provides:

When any person, including any juvenile, has been charged with or convicted of a violation of any provision of chapter 893 ... the court ... may in its discretion require the person charged or convicted to participate in a drug treatment program.... 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.

(Emphasis added.)

We have concluded the question should not be certified in light of this court's decision in State v. Ross and because it would appear to be implausible to suppose that the legislature intended all the mandatory provisions of Chapter 893, some albeit draconian, to be avoidable by the simple defense of drug addiction. Ross was convicted of robbery with a firearm, a violation of section 775.087(2)(a), Florida Statutes (1989), which carries a three year mandatory minimum. Ross committed the crime while under the influence of a controlled substance so section 397.12 was also triggered. Pursuant to section 397.12, the trial court sentenced Ross to probation and required him to participate in a drug rehabilitation program.

Although a different statute was involved, the...