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761 So. 2d 1244

Docket No. 2D99-4337.

State v. Lazo

STATE of Florida, Appellant, v. Jose G. LAZO, Appellee.

District Court of Appeal of Florida

Decided July 12, 2000.

District Court of Appeal of Florida · decided 2000-07-12

Cited by 6 later decisions — most recently August 2005

6 state decisions

Key passage — most relied on by later courts

“The plain language of section 948.034(2) [the 1997 provision allowing drug offender probation] unambiguously indicates that it applies only to violations of the specific provisions referenced in the statute.... Driving on a suspended or revoked driver's license is not.”

quoted by 2 later decisions, including Ellis v. State, Buswell v. State

“(1) On or after October 1, 1993, any person who violates s. 893.13(1)(a)1., (1)(c)2., (1)(d)2., (2)(a)1., or (5)(a) may, in the discretion of the trial court, be required to successfully complete a term of probation in lieu of serving a term of imprisonment as required or authorized by s. 775.084, former s. 921.001, or s. 921.002, as follows: (a) If the person has not previously been convicted of violating s. 893.13(1)(a)1., (1)(c)2., (1)(d)2., (2)(a)1., or (5)(a), adjudication may be withheld and the offender may be placed on probation for not less than 18 months, as a condition of which the court shall require the offender to reside at a community residential drug punishment center for 90 days.... (b) If the person has been previously convicted of one felony violation of s. 893.13(1)(a)1., (1)(c)2., (1)(d)2., (2)(a)1., or (5)(a), adjudication may not be withheld and the offender may be placed on probation for not less than 24 months, as a condition of which the court shall require the offender to reside at a community residential drug punishment center for 180 days.... . . . (2) On or after October 1, 1993, any person who violates s. 893.13(1)(a)2., (2)(a)2., (5)(b), or (6)(a) may, in the discretion of the trial court, be required to successfully complete a term of probation in lieu of serving a term of imprisonment as required or authorized by s. 775.084, former s. 921.001, or s. 921.002, as follows: (a) If the person has not previously been convicted of violating s. 893.1”

quoted by 1 later decision, including Ellis v. State

Relies on Morris v. Morris

Good law ✅— No negative treatment on recordhow we know

Decided 2000-07-12

View the full empirical analysis of this case →

¶1Robert A. Butterworth, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellant.

¶2James Marion Moorman, Public Defender, Bartow, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee.

¶3THREADGILL, Acting Chief Judge.

¶4The State appeals the imposition of drug offender probation for the offense of driving while license suspended or revoked. We reverse.

¶5On September 15, 1999, the appellee, Jose G. Lazo, entered a plea of nolo contendere to possession of cocaine, a violation of section 893.13(6)(a), Florida Statutes (1997), and felony driving while license suspended or revoked, a violation of sections 322.34(5) and 322.264, Florida Statutes (1997). Both offenses were third-degree felonies. The guidelines scoresheet, which scored possession of cocaine as the primary offense, indicated a total guidelines score of 127.9 for a sentencing range of 74.925 to 124.875 months in prison. At sentencing, over the State's objection, the trial court sentenced Lazo on both offenses to concurrent four-year terms of drug offender probation pursuant to section 948.034(2), Florida Statutes (1997).

¶6On appeal, the State concedes that the trial court properly exercised its discretion to impose drug offender probation for the cocaine possession charge, but argues that the trial court erred in imposing concurrent drug offender probation on the felony DWLSR charge. We agree.

¶7Section 948.034(2) provides that any person who violates section 893.13(6)(a) or other specifically enumerated sections may, in the discretion of the trial court, be placed on drug offender probation in lieu of serving a term of imprisonment. The plain language of section 948.034(2) unambiguously indicates that it applies only to violations of the specific provisions referenced in the statute. Possession of cocaine is one of the enumerated offenses. Driving on a suspended or revoked driver's license is not. The trial court incorrectly reasoned that the statute applied to *1245 the felony DWLSR in this instance, simply because Lazo was sentenced on that charge at the same time he was sentenced on the cocaine possession charge. The trial court therefore erred in imposing drug offender probation on the DWLSR offense, as the statute does not apply to that offense.

¶8Nor can drug offender probation on the felony DWLSR be justified as a downward departure sentence, based on Lazo's apparent drug addiction. A defendant's drug addiction and amenability to rehabilitation are no longer valid reasons for a downward departure from sentencing guidelines. See § 921.0016(5), Fla. Stat. (1997); see also State v. Norris,724 So.2d 630 (Fla. 5th DCA 1998).

¶9Therefore, based on the foregoing reasons, we reverse and remand this cause for resentencing.

¶10WHATLEY and NORTHCUTT, JJ., Concur.

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