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District Court Reverses Downward Departure In Dui

By Expert Author: Henry Rundquist

State vs. Montanez The District Court of Appeal reversed the lower court's downward departure sentences for the defendant in two DUI cases.

The state's argument on appellate case was that the court ordered downward departure from the sentencing guidelines wasn't supported by competent & substantial proof. In this matter, the defendant had been arrested for and charged for committing a 3rd DUI inside of ten years of the defendant's second DUI conviction. Due to the fact that the defendant's 3rd DUI was alleged to be within 10 years of his 2nd conviction for DUI, the matter was charged as a felony and filed in the Circuit Court as opposed to the County Court which handles misdemeanors. While the third DUI case was still pending, the defendant was arrested for a fourth DUI, which is a felony, aggravated fleeing & eluding a police officer and refusal to submit to testing. The matter was charged as a felony and assigned to the same Judge in the prior case. The state created a sentencing score sheet and the defendant scored a minimum sentence of 12.45 months in Florida State Prison. The court, conducted a sentencing hearing and heard testimony concerning defendant's third DUI. After hearing the evidence, the judge offered to grant the defendant' a downward departure contingent upon the defendant entering a plea to his outstanding charges, including his 4th DUI. The trial court reasoned:

The lower court conducted a sentencing hearing for the defendant's 3rd DUI and heard testimony from defendant's family, including defendant's sister. The circuit court found the defendant's sister to be a very credible witness and that she was able to provide important information into his present-day family affairs. The circuit court found that defendant's pending separation in addition to divorce should be considered factors in mitigation factors because of to the extreme emotional problems that the issues were causing defendant and his family members. The trial court explicitly noted how the continuous family law difficulties were having an effect on the defendant, defendant's family & his kids. The circuit court said that the defendant turns to substance abuse in order to deal with the ongoing stress in his daily life. In reaching the conclusion to grant defendant a downward departure from the sentencing guidelines, the circuit court remarked that nobody had been hurt in either of defendant's arrests. The state appealed the lower court's sentence, on the premises that the court's ruling was an unlawful downward departure from the sentencing guidelines, & that there was insufficient evidence to support the downward departure. The court concurred with the latter reasoning, observing that no evidence provided by any witness demonstrated that the defendant's turbulent family life made him more prone to substance abuse.

For additional information concerning Fdle Expunge Fort Lauderdale FL , Dui Lawyer Fort Lauderdale FL or Criminal Attorney Fort Lauderdale FL, please contact us at: The Law Offices of Michael A. Dye, PA 1 E Broward Blvd #700
Fort Lauderdale, FL 33301
(954)745-5848

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