
    STATE of Florida, Appellant, v. Howard JENKINS, Appellee.
    No. 90-2736.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 1992.
    
      Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Mallorye Cunningham, Asst. Public Defender, West Palm Beach, for appellee.
   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.

POLEN, Judge,

dissenting, with which GLICKSTEIN, Chief Judge, and ANSTEAD, Judge, concur.

I respectfully dissent.

I believe that the mandates should be stayed pending possible disposition by the Supreme Court of Florida on the question certified in State v. Scates, 585 So.2d 385 (Fla. 4th DCA 1991), or any of the other pending cases presenting this issue. The supreme court may decide that the mandatory minimum sentence provided in section 893.13(l)(e)(l), Florida Statutes (1989), does not apply if the defendant has been referred to a drug treatment program under section 397.12, Florida Statutes (1989).

It seems much less harsh to have some defendants’ sentences suspended until the decision comes down from the supreme court, compared to having the same defendants put in prison to serve time which may not be necessary to serve. At the same time, if drug rehabilitation is being undertaken by these defendants, pursuant to section 397.12 and the trial courts’ orders which we have reversed, the potential benefit to these defendants (as well as the people of Florida, who will suffer less financial impact and possibly a few less drug addicts) far outweighs the evil of having their mandatory prison terms delayed.

In light of the above reasoning I think that it would be more appropriate for us to wait for the high court to make it clear what the legislature intended in enacting the mandatory minimum in section 893.-13(l)(e)(l), and to spell out how that statute should be applied in circumstances where section 397.12 may be applicable. I dissent and would grant the motion to stay mandate in this case and other similar ones.  