Florida/Georgia Personal Injury & Workers Compensation

...et and giving the court no power to dismiss charged priors for which there was sufficient evidence would pass constitutional muster. " Id. at 650 (Chin, concurring)(emphasis supplied). Cf. State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996)(holding that section 397.705, Florida Statutes, which allows a court with jurisdiction over a substance-abuse impaired offender who is either charged with or convicted of a crime to refer the offender to receive drug counseling "instead of or in addition to final...

...Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Respondents. WELLS, Justice. We have for review a decision certifying the following question certified to be of great public importance: DOES CHAPTER 397.705, FLORIDA STATUTES, AUTHORIZE A TRIAL COURT TO DISMISS CHARGES AGAINST A DEFENDANT UPON HIS COMPLETION OF A SUBSTANCE ABUSE PROGRAM OVER OBJECTION BY THE STATE? State v....

...After completing the programs, both Dugan and Burroughs moved the court to dismiss the charges. Over the State's objection, the court granted the motions. On appeal, the Fourth District affirmed. The district court turned to two statutes: sections 893.15 and 397.705(1), Florida Statutes (1993)....

...ription or who is in possession of not more than twenty grams of cannabis, [1] to participate in a substance abuse services program, "in addition to, or in lieu of, any penalty or probation otherwise prescribed by law." § 893.15, Fla. Stat. (1993). Section 397.705(1), Florida Statutes (1993), allows a court with jurisdiction over a substance-abuse impaired offender who is either charged with or convicted of a crime to refer the offender to receive drug counseling "instead of or in addition to final adjudication, imposition of a penalty or sentence, or other action." § 397.705, Fla. Stat. (1993). The court found that these statutes empower the *1212 court to dismiss the charges against a defendant for two reasons. Dugan, 665 So.2d at 1065. First, since section 397.705, Florida Statutes (1993), allows an offender to seek treatment after only being charged with an offense, it seemed appropriate for a court to dismiss the charges against that offender once the drug treatment was completed....

...rt to dismiss the charges. Dugan, 665 So.2d at 1065. On motion for rehearing and for certification of question, the district court certified the foregoing question. Since both Dugan and Burroughs committed their crimes prior to the effective date of section 397.705, Florida Statutes (1993), we will first turn to the applicable 1991 statutes....

...See §§ 397.011, 397.10, 397.12, Fla. Stat. (1991). This language clearly authorizes a trial court to close the case by dismissing the charges against the offender once the offender successfully *1213 completes the drug treatment program. Additionally, the results are the same under section 397.705(1), Florida Statutes (1993)....

...There is an exception to the rule that the State has the absolute discretion to determine whether to charge a defendant. This occurs when there is a statute that specifically authorizes the court to make such a determination. See State v. Dugan, 685 So.2d 1210 (Fla.1996) (finding that the language in section 397.705 explicitly *1104 authorizes the trial court to dismiss the charges against a defendant upon the successful completion of the required drug intervention program, even over the State's objections)....

...Such required participation may be imposed in addition to, or in lieu of, any penalty or probation otherwise prescribed by law. However, the total time of such penalty, probation, and program participation shall not exceed the maximum length of sentence possible for the offense. (Footnote omitted.) (Emphasis added.) Section 397.705(1), Florida Statutes (1993), which is part of the chapter entitled "Substance Abuse Services," provides in part: AUTHORITY TO REFER....

...her action. (Emphasis added.) The state argues that these two statutes do not authorize dismissal; however, we do not agree. Section 893.15 authorizes the court to order participation in a treatment program "in lieu of, any penalty or probation" and section 397.705(1) similarly authorizes referral for treatment by the court "instead of ... other action." This language is clearly broader than the interpretation which the state urges on us, which is that these statutes only provide for sentencing alternatives to imprisonment or probation, but do not authorize dismissal. Moreover, section 397.705(1) authorizes the court to require people who are only "charged" with a crime to get treatment, which is precisely what happened with appellee Burroughs....

...DELL and STEVENSON, JJ., concur. ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION OF QUESTION KLEIN, Judge. We deny the state's motion for rehearing, but grant its motion for certification and certify the following question as one of great public importance: DOES CHAPTER 397.705, FLORIDA STATUTES, AUTHORIZE A TRIAL COURT TO DISMISS CHARGES AGAINST A DEFENDANT UPON HIS COMPLETION OF A SUBSTANCE ABUSE PROGRAM OVER OBJECTION BY THE STATE? DELL and STEVENSON, JJ., concur.

...2d DCA 1993) (stating, "[a] trial judge has no discretion to depart from the minimum mandatory sentencing provisions of section 893.13(1)(e)(1) when the statutory violation involves sale of drugs"). Further, section 397.12 was repealed and replaced with section 397.705, Florida Statutes (2002). Ch. 93-39, §§ 8, 49, at 255, 279, Laws of Fla. Section 397.705 no longer permits referral to treatment "in lieu of ... final adjudication, imposition of any penalty or sentence, or other action." Cf. § 397.12, Fla. Stat. (1989). Instead, section 397.705(1) now requires "the referral shall be in addition to final adjudication, imposition of penalty or sentence, or other action." (Emphasis added.) Thus neither Scates nor the current statutes on substance abuse services permit the trial...

...1), although the statute now refers to selling, manufacturing, or delivering cocaine; not to purchasing cocaine. [2] This conclusion does not conflict with State v. Francois, 650 So.2d 1131 (Fla. 3d DCA 1995). That case addressed the 1993 version of section 397.705, which still permitted a referral " instead of or in addition to final adjudication, imposition of penalty or sentence, or other action." (Emphasis added.) The current version of section 397.705 no longer contains the phrase "instead of." See ch....

...authorization for the sentence and checked off the block for “drug offender probation.” Because the basis for the sentence is unclear from the transcript of the sentencing hearing and the record on appeal, we vacate and remand for resentenc-ing. Section 397.705(1), Florida Statutes (1997), the chapter referred to by the judge at the sentencing hearing, provides that a trial judge may require any “substance abuse impaired offender” convicted of a crime to receive drug abuse treatment in addition to the penalty otherwise required by the sentencing guidelines....

...The School Board of Broward County referred appellee to Spectrum for substance abuse treatment. She was admitted to Spectrum on February 28, 1996. On April 22, 1996, the trial court entered an order requiring appellee to attend Spectrum and successfully complete the substance abuse program pursuant to section 397.705(1), Florida Statutes (1993). [1] After appellee completed the program, she moved to dismiss the charges against her pursuant to section 397.705(1). At the hearing on the motion, the state opposed dismissal arguing that section 397.705(1) does not apply to juveniles. The trial court granted the motion to dismiss based on section 397.705(1), Florida Statutes and State v....

...o imposing a penalty or sentence." C.O., 700 So.2d at 169. Since appellee's decision to enter the program was not made in reliance on a promise by the state or the trial court that her charges would be dismissed and dismissal was discretionary under section 397.705(1), the state was not required to object at the time the trial court referred her to the program. The state argues the trial court improperly dismissed appellee's charges pursuant to section 397.705(1), Florida Statutes *224 and Dugan because section 397.705(1) does not apply to juveniles....

...He did not enter a plea, but he also entered a substance abuse program at the court's suggestion. After completing the programs, both Dugan and Burroughs moved to dismiss the charges against them. Over the state's objection, the court granted the motions and dismissed the drug charges pursuant to section 397.705(1), Florida Statutes (1993). This court affirmed the dismissal. See State v. Dugan, 665 So.2d 1064 (Fla. 4th DCA 1995). In approving of this court's decision in Dugan, the Supreme Court stated that section 397.705(1), Florida Statutes (1993) gives trial courts the discretion to dismiss charges against a substance abuse impaired offender who successfully completes a drug treatment program when the offender is referred to the program by the court. 685 So.2d at 1212-13. Dugan did not address whether section 397.705(1) applies to juveniles. Section 397.705(1), Florida Statutes (1995) provides: (1) AUTHORITY TO REFER.—If any offender, including but not limited to any minor, is charged with or convicted of a crime, the court or criminal justice authority with jurisdiction over that offen...

...If referred by the court, the referral may be instead of or in addition to final adjudication, imposition of penalty or sentence, or other action. (emphasis added) The state contends that "by using the words `crime', `conviction', and `sentence', the Legislature clearly did not intend for § 397.705 to apply to juvenile offenders." In support of this argument, the state refers to Department of H.R.S....

...and `the Rules of Criminal Procedure.'" Id. at 228. The court also stated that "[n]othing in the statute suggests the legislature intended to make [the statute] applicable to delinquency proceedings." Id. Unlike the statute in Department of H.R.S., section 397.705(1) expressly refers to "minors." Juveniles are also subject to adjudication of delinquency and may receive imposition of penalties pursuant to chapter 39, Florida Statutes (1995)....

...nal imprisonment by encouraging the referral of such offenders to service providers not generally available within the correctional system instead of or in addition to criminal penalties. § 397.305(7), Fla. Stat. (1995). By tracking the language of section 397.705(1), it appears the legislature intended this section to apply to juveniles. The legislative intent also suggests that the legislature was not making the same distinction between the words "crimes" and "acts of delinquency" that would be made by courts. Finally, the 1991 version of section 397.705 may also give insight into the intent of the legislature when it referred to "any offender" and "minor." In section 397.12, Florida Statutes (1991), which was repealed and replaced with section 397.705, Florida Statutes (1993), provided, in part: When any person, including any juvenile, has been charged with or convicted of a violation of chapter 893 or a violation of any law committed under the influence of a controlled substance, the court ......

...ly intended section 397.12, Florida Statutes (1991) to apply to juveniles, the legislature still used the words "convicted" and "sentence." Therefore, the state's argument that use of these words clearly indicates that the legislature did not intend section 397.705(1) to juveniles is not persuasive. The state also contends that section 397.706(1) prevents a trial court from dismissing a juvenile's charges pursuant to section 397.705(1) because the specific language and requirements of section 397.706(1) control over the general provisions of section 397.705(1)....

...lies must be identified and addressed through diversionary programs and adjudicatory proceedings pursuant to chapter 39. We believe the two sections are not in conflict and may be read together to permit dismissal of a juvenile's charges pursuant to section 397.705(1), Florida Statutes (1995). Section 397.705(1), Florida Statutes (1995) gives trial courts the general authority to refer offenders to substance abuse programs and to dismiss their charges upon successful completion. If a court chooses to refer a juvenile pursuant to section 397.705(1), section 397.706(1) indicates that juveniles must attend programs designed for juveniles and be monitored by the juvenile court. Finally, it is important to note the legislature amended section 397.705(1), Florida Statutes in 1997....

...The amendment provides that referral of an offender to a substance abuse program must be in addition to, and not as an alternative to, adjudication or imposition of a sentence. Under the amended version, it appears trial courts are no longer authorized to dismiss an offender's charges pursuant to section 397.705(1)....

...completion of a delinquency pretrial intervention program. GLICKSTEIN, DELL and GUNTHER, JJ., concur. NOTES [1] The trial court incorrectly referred to Florida Statutes 1993; however, this error is not important because the 1993 and 1995 versions of section 397.705(1) are identical.

...The School Board of Broward County referred appellee to Spectrum for substance abuse treatment. She was admitted to Spectrum on February 28, 1996. On April 22, 1996, the trial court entered an order requiring appellee to attend Spectrum and successfully complete the substance abuse program pursuant to section 397.705(1), Florida Statutes (1993). 1 After appellee completed the program, she moved to dismiss the charges against her pursuant to section 397.705(1). At the hearing on the motion, the state opposed dismissal arguing that section 397.705(1) does not apply to juveniles. The trial court granted the motion to dismiss based on section 397.705(1), Florida Statutes and State v....

...osing a penalty or sentence.” C.O., 700 So.2d at 169 . Since appellee’s decision to enter the program was not made in reliance on a promise by the state or the trial court that her charges would be dismissed and dismissal was discretionary under section 397.705(1), the state was not required to object at the time the trial court referred her to the program. The state argues the trial court improperly dismissed appellee’s charges pursuant to section 397.705(1), Florida Statutes *224 and Dugan because section 397.705(1) does not apply to juveniles....

...He did not enter a plea, but he also entered a substance abuse program at the court’s suggestion. After completing the programs, both Dugan and Burroughs moved to dismiss the charges against them. Over the state’s objection, the court granted the motions and dismissed the drug charges pursuant to section 397.705(1), Florida Statutes (1993). This court affirmed the dismissal. See State v. Dugan, 665 So.2d 1064 (Fla. 4th DCA 1995). In approving of this court’s decision in Dugan, the Supreme Court stated that section 397.705(1), Florida Statutes (1993) gives trial courts the discretion to dismiss charges against a substance abuse impaired offender who successfully completes a drug treatment program when the offender is referred to the program by the court. 685 So.2d at 1212-13 . Dugan did not address whether section 397.705(1) applies to juveniles. Section 397.705(1), Florida Statutes (1995) provides: (1) AUTHORITY TO REFER....

...If referred by the court, the referral may be instead of or in addition to final adjudication, imposition of penalty or sentence, or other action. (emphasis added) The state contends that “by using the words ‘crime’, ‘conviction’, and ‘sentence’, the Legislature clearly did not intend for § 397.705 to apply to juvenile offenders.” In support of this argument, the state refers to Department of H.R.S....

...Rules of Criminal Procedure.’ ” Id. at 228 . The court also stated that “[njothing in the statute suggests the legislature intended to make [the statute] applicable to delinquency proceedings.” Id. Unlike the statute in Department of H.R.S., section 397.705(1) expressly refers to “minors.” Juveniles are also subject to adjudication of delinquency and may receive imposition of penalties pursuant to chapter 39, Florida Statutes (1995)....

...nal imprisonment by encouraging the referral of such offenders to service providers not generally available within the correctional system instead of or in addition to criminal penalties. § 397.305(7), Fla. Stat. (1995). By tracking the language of section 397.705(1), it appears the legislature intended this section to apply to juveniles. The legislative intent also suggests that the legislature was not making the same distinction between the words “crimes” and “acts of delinquency” that would be made by courts. Finally, the 1991 version of section 397.705 may also give insight into the intent of the legislature when it referred to “any offender” and “minor.” In section 397.12, Florida Statutes (1991), which was repealed and replaced with section 397.705, Florida Statutes (1993), provided, in part: When any person, including any juvenile, has been charged with or convicted of a violation of chapter 893 or a violation of any law committed under the influence of a controlled substance, the court ......

...d section 397.12, Florida Statutes (1991) to apply to juveniles, the legislature still used the words “convicted” and “sentence.” Therefore, the state’s argument that use of these words clearly indicates that the legislature did not intend section 397.705(1) to juveniles is not persuasive. The state also contends that section 397.706(1) prevents a trial court from dismissing a juvenile’s charges pursuant to section 397.705(1) because the specific language and requirements of section 397.706(1) control over the general provisions of section 397.705(1)....

...es must be identified and addressed through diversionary programs and adjudicatory proceedings pursuant to chapter 39. We believe the two sections are not in conflict and may be read together to permit dismissal of a juvenile’s charges pursuant to section 397.705(1), Florida Statutes (1995). Section 397.705(1), Florida Statutes (1995) gives trial courts the general authority to refer offenders to substance abuse programs and to dismiss their charges upon successful completion. If a court chooses to refer a juvenile pursuant to section 397.705(1), section 397.706(1) indicates that juveniles must attend programs designed for juveniles and be monitored by the juvenile court. Finally, it is important to note the legislature amended section 397.705(1), Florida Statutes in 1997....

...The amendment provides that referral of an offender to a substance abuse program must be in addition to, and not as an alternative to, adjudication or imposition of a sentence. Under the amended version, it appears trial courts are no longer authorized to dismiss an offender’s charges pursuant to section 397.705(1)....

...ssful completion of a delinquency pretrial intervention program. GLICKSTEIN, DELL and GUNTHER, ' JJ., concur. . The trial court incorrectly referred to Florida Statutes 1993; however, this error is not important because the 1993 and 1995 versions of section 397.705(1) are identical.

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

...There is an exception to the rule that the State has the absolute discretion to determine whether to charge a defendant. This occurs when there is a statute that specifically authorizes the court to make such a determination. See State v. Dugan, 685 So.2d 1210 (Fla.1996) (finding that the language in section 397.705 explic *1104 itly authorizes the trial court to dismiss the charges against a defendant upon the successful completion of the required drug intervention program, even over the State’s objections)....

...See Nordberg v. State, 603 So.2d 509 (Fla.1992). However, the statutes upon which the Scates and Nordberg decisions were based have undergone significant changes. In 1993, section 893.13(l)(e) was amended and renumbered, and section 397.12 was repealed with section 397.705 enacted in its place. See § 893.13(l)(e), Fla. Stat. (1993); State v. Francois, 650 So.2d 1131 (Fla. 3d DCA 1995). Section 397.705, Florida Statutes (1995), provides that if “any offender ......

...is charged with or convicted of a crime,” the court may require the offender to undergo substance abuse treatment. Referral to such a treatment program by a trial court “may be instead of or in addition to final adjudication, imposition of penalty or sentence, or other action.” § 397.705, Fla. Stat. (1995). Thus, this section also allows a trial court to impose a downward departure sentence and to require a defendant to receive substance abuse treatment. See Francois, 650 So.2d at 1131 . However, section 397.705 does not explicitly refer to chapter 893....