State v. Jenkins , 1992 Fla. App. LEXIS 321 ( 1992 )

EN BANC OPINION ON MOTION TO STAY

PER CURIAM.

We have considered en banc whether to stay the issuance of a mandate in each of several opinions of this court involving sentences imposed by trial courts below the three-year mandatory minimum requirements of section 893.13(l)(e)(l), Florida Statutes (1989). In each case, the trial court referred the defendant to a drug treatment program, applying section 397.-12, Florida Statutes (1989).

Although this court consistently has required application of the mandatory minimums, this court certified the issue to the supreme court in State v. Scates, 585 So.2d 385 (Fla. 4th DCA 1991). However, other opinions of the court have not certified the issue. See, e.g., State v. Walker, 588 So.2d 1097 (Fla. 4th DCA 1991). Notwithstanding the certification, it remains the judgment of the court that discretionary sentences below the prescribed mandatory minimum in such cases are unlawful. Additionally, issuing stays of the mandates in these appeals might well be construed as justifying further sentences below the mandatory minimum sentence notwithstanding our opinions clearly holding such sentences illegal. Therefore, we order that all motions for stay of mandate pending supreme court review of that issue will be denied by this court. Accordingly, the ap-pellee’s motion to stay mandate is denied.

DOWNEY, LETTS, HERSEY, DELL, GUNTHER, STONE, WARNER, GARRETT and FARMER, JJ., concur. POLEN, J., dissents with opinion, with which GLICKSTEIN, C.J., and ANSTEAD, J., concur.