Florida District Courts of Appeal, 1997

State v. Fisher

State v. Fisher
Florida District Courts of Appeal · Decided November 5, 1997 · Pariente, Stevenson, Warner
700 So. 2d 1253; 1997 Fla. App. LEXIS 12290; 1997 WL 683231 (Southern Reporter, Second Series)

State v. Fisher

Opinion of the Court

WARNER, Judge.

The state appeals the trial court’s imposition of appellee’s downward departure sentence for possession of cocaine with intent to deliver or sell. The court departed based on Barbera v. State, 505 So.2d 413 (Fla. 1987), receded from on other grounds, Pope v. State, 561 So.2d 554 (Fla. 1990). The appellee testified at the sentencing hearing that he was under the influence of drugs on the day of the incident “at that time.” We think that this reference to time can only mean that the appellee was on drugs at the time he committed the offense. The state did not cross-examine appellee on this point. Therefore, we find that the evidence was sufficient to prove that appellee was impaired at the time of the offense, thereby justifying a Barbera downward departure.

Affirmed.

PARIENTE and STEVENSON, JJ., concur.

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