State v. Francois

650 So. 2d 1131, 1995 Fla. App. LEXIS 1943, 1995 WL 79900

• Court: District Court of Appeal of Florida
• Decided: March 1, 1995
• Docket: No. 94-894
• Status: Published

Opinion

PER CURIAM.

The State appeals from a sentencing order departing downward from the minimum mandatory sentence of three years as provided by Ch. 93-406, § 22 at 2948, Laws of Florida.¹

The defendant was charged by two-count information with the unlawful sale or purchase of cocaine on or near school property on or about October 15, 1993, and possession of cocaine on or about October 15, 1993. Subsequently, the defendant entered a plea of nolo contendere. Over State objection, the court withheld adjudication and sentenced the defendant to a downward drug departure sentence of one year of probation with the special condition that he receive outpatient drug treatment in a program licensed by the Department of Health and Rehabilitative Services pursuant to § 397.12, Florida Statutes (1991). The State’s appeal follows.

We affirm the downward departure sentence based on the authority of Nordberg v. State, 603 So.2d 509 (Fla.1992). Additionally, we find, that although § 397.12, Florida Statutes (1991) was repealed effective October 1, 1993, the trial court still had the discretion, pursuant to § 397.705, Florida Statutes (1993),² to impose a downward departure sentence and to require the defendant to receive substance abuse treatment.

Accordingly, we affirm the downward departure sentence.

1 . Ch. 93 — 406, § 22 at 2948, Laws of Florida, amended § 893.13(l)(e)(l), Florida Statutes (1991) effective June 17, 1993, through December 31, 1993.

2 . In Ch. 93-39, Laws of Florida, the Florida Legislature simultaneously enacted § 397.705, Florida Statutes (1993), and repealed § 397.12, Florida Statutes (1991).