State v. VanBebber

Summary

The Supreme Court of Florida held that the mitigating circumstance in section 921.0026(2)(j), Florida Statutes, is available to support a downward departure from a sentence for a felony DUI conviction. The court approved the Second District's decision in State v. VanBebber and disapproved State v. Warner to the extent it conflicted with that holding. The court concluded that the statute's exclusion of only capital felonies and its prohibition on using intoxication as a mitigating factor did not preclude consideration of the unsophisticated-manner, isolated-incident, and remorse mitigator.

Holdings

1. The mitigator in section 921.0026(2)(j), Florida Statutes (Supp. 1998), is available to support a downward departure from a sentence for a felony DUI conviction.
2. Applying section 921.0026(2)(j) to a felony DUI conviction does not conflict with section 921.0026(3), because intoxication itself may not serve as a mitigating factor, but other statutory mitigators may be considered when the offense involved intoxication.

Questions Presented

1. Whether the mitigator in section 921.0026(2)(j), Florida Statutes (Supp. 1998), is legally available to support a downward departure from a sentence for a felony DUI conviction.
2. Whether applying section 921.0026(2)(j) to a felony DUI conviction conflicts with section 921.0026(3), which excludes substance abuse or intoxication as a mitigating factor.

Disposition

approved