State v. Lopez-Ona

SALMON, J.,

concurring specially.

*159The Defendant was convicted of driving under the influence of alcohol for the third time within five years. That conviction required the court to order the Defendant imprisoned for not less than 30 days. Section 316.192(b)(c), Fla. Stat. (1987), (the “Statute”). In addition to the other penalties imposed, the trial judge ordered that the Defendant serve “30 days in County Jail, to be served on [sic] Dade County Work project of [sic] 60 days. “The question is whether or not the sentence imposed meets the requirements of the statute which mandates imprisonment. Because I believe it does not, I vote to reverse.

Regardless of whether one is an admirer of Gertrude Stein or Oscar Wilde, the clear import of the Statute is that the Defendant spend 30 days imprisoned. While I agree with that portion of the dissent that acknowledges that the trial judge may grant the Defendant the privilege to leave the jail to work at paid employment, that provision does not authorize the judge to release the Defendant from jail when he is not working, which is what was done in this case.

I find nothing inherently unfair in requiring the Defendant to serve those after work hours and weekends he would have served had a lawful sentence been imposed; after all, he was three times convicted. I would reverse and remand with directions to the trial judge to impose a lawful sentence.

Reversed and remanded.