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State v. VanBebber10/26/2001
Appeal from the Circuit Court for Collier County; William L. Blackwell, Judge.
The State appeals the downward departure imposed in this tragic case involving death and personal injury caused by drunken driving. We affirm but certify conflict with State v. Warner, 721 So. 2d 767 (Fla. 4th DCA 1998), aff'd on other grounds, 762 So. 2d 507 (Fla. 2000); see also State v. Beck, 763 So. 2d 506 (Fla. 4th DCA 2000).
On May 23, 1999, Paul VanBebber was driving home after a party at which he had consumed sufficient alcohol that his faculties were impaired. He failed to stop at a stop sign and collided with another vehicle that contained a family of six: two parents, a six-year-old son, a four-year-old daughter, a four-week-old daughter, and the father's brother who was visiting from Columbia. The three children suffered injuries and their uncle was killed in the crash. The State charged VanBebber with one count of DUI with property damage, three counts of DUI with personal injury , one of them with serious bodily injury, and one count of DUI/manslaughter. VanBebber, exhibiting extreme and sincere remorse while recognizing his fault, pleaded nolo to all offenses as charged.
At the sentencing hearing, the trial court heard from members of the victim's family as well as VanBebber's, including VanBebber himself. Each side outlined the devastating effect the accident has had on the families. Defense counsel argued for a downward departure from the guidelines sentence of 175.9 to 240 months based on the statutory mitigator of "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla. Stat. (Supp. 1998). The trial court agreed that the evidence fulfilled the requirements of section 921.0026(2)(j) and imposed a downward departure. It sentenced VanBebber to 200 months' incarceration for the counts of DUI/manslaughter and DUI with serious personal injury , but suspended it upon completion of fifteen years' probation with special conditions. The State does not dispute that the evidence presented at the sentencing hearing supported the mitigator, although the trial court did observe with some puzzlement that it was unsure how one would commit this crime in a sophisticated manner. The State objected to the downward departure, thus preserving this issue, which it then appealed.
The State argues that we should follow the Fourth District in its holding that this statutory mitigator is not available in DUI cases due to the State of Florida's strong public policy in curbing DUI offenses. Warner, 721 So. 2d at 769. We decline to do so for the following reasons. First, section 921.0026, which lays out certain mitigating circumstances, states unequivocally: "This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998." There is no exception provided for DUI offenses, as was done for a capital felony. Thus, the legislature did not preclude mitigation if the crime is DUI and was an isolated incident, committed in an unsophisticated manner, for which the defendant has shown remorse. We must, of course, strictly construe penal statutes. State v. Rife, 789 So. 2d 288 (Fla. 2001).
The second reason relates to the public policy factor. Like the Fourth District, we are not unmindful of, and also endorse in the strongest of terms, the public policy that seeks to eradicate the scourge of drunken driving in our society. Without going into details, this case is a prime example of the awful effects it can have on numerous lives. However, we are confident that the legislature is equally aware of this public policy; indeed it promulgates this policy, as seen, for
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