State of Florida v. Harry James Chubbuck , 39 Fla. L. Weekly Supp. 437 ( 2014 )

Supreme Court of Florida
____________
No. SC12-657
____________
STATE OF FLORIDA,
Petitioner,
vs.
HARRY JAMES CHUBBUCK,
Respondent.
[June 19, 2014]
PER CURIAM.
This case is before the Court for review of the decision of the Fourth District
Court of Appeal in State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012) (en
banc). The district court certified that its decision is in direct conflict with the
following decisions of the district courts of appeal: State v. Ford, 48 So. 3d 948(Fla. 3d DCA 2010), State v. Scherber, 918 So. 2d 423 (Fla. 2d DCA 2006), State
v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005), State v. Wheeler, 891 So. 2d 614(Fla. 2d DCA 2005), State v. Green (Green I), 890 So. 2d 1283 (Fla. 2d DCA
2005), State v. Mann, 866 So. 2d 179 (Fla. 5th DCA 2004), State v. Tyrrell, 807
So. 2d 122 (Fla. 5th DCA 2002), State v. Thompson, 754 So. 2d 126 (Fla. 5th
DCA 2000), and State v. Abrams, 706 So. 2d 903 (Fla. 2d DCA 1998). We have
jurisdiction. See art. V, § 3(b)(4), Fla. Const.
This case pertains to subsection 921.0026(2)(d), Florida Statutes (2009),
which authorizes a trial court to give a downward departure sentence if it finds that
“[t]he defendant requires specialized treatment for a mental disorder that is
unrelated to substance abuse or addiction or for a physical disability, and the
defendant is amenable to treatment.” § 921.0026(2)(d), Fla. Stat. (2009). The
question presented is whether this departure ground requires the defendant to prove
that the required specialized treatment is unavailable in the Florida Department of
Corrections (DOC). We hold that the plain language of the statute does not include
a requirement that the defendant prove unavailability of specialized treatment in
the DOC as part of the definition. We therefore approve the Fourth District’s
decision in Chubbuck.
FACTS
In January 2008, Harry Chubbuck was charged with one count of trafficking
in cocaine (28-200 grams) (§ 893.135(1)(b)1.a., Fla. Stat. (2007)), one count of
possession of cocaine with intent to sell (§ 893.13(1)(a), Fla. Stat. (2007)), one
count of possession of paraphernalia (production) (§ 893.147(1)(a), Fla. Stat.
(2007)), and one count of felon in possession of firearm or ammunition
(constructive possession) (§ 790.23(1)(a), (c)-(e), Fla. Stat. (2007)). Pursuant to a
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subsequent plea agreement entered into by Chubbuck and the State, Chubbuck
agreed to plead guilty to the charges in exchange for five years’ probation and no
incarceration.1 In April 2009, the trial court adjudicated Chubbuck guilty and
placed him on probation in accordance with the plea agreement. 2 The trial court
further ordered Chubbuck to abstain from the use of alcohol and illegal drugs and
submit to random urinalysis testing during probation.
On July 21, 2010, a violation of probation affidavit was filed against
Chubbuck, which alleged that Chubbuck “fail[ed] to live and remain at liberty
without violating any law” by possessing cocaine as revealed from his urine
sample. Chubbuck then filed with the trial court an “Information for Court,” which
outlined his prior military service and his extensive health issues. 3 On November
12, 2010, the trial court held Chubbuck’s violation of probation hearing. The State
informed the trial court that it could either reinstate Chubbuck’s probation or
1. The scoresheet indicated that the lowest permissible prison sentence was
33.3 months and the maximum prison sentence was sixty-one years.
2. The probation order omits the possession of paraphernalia count.
3. It was represented through this filing that Chubbuck suffers from post-
traumatic stress disorder (PTSD), chronic obtrusive pulmonary disease, diabetes,
hepatitis C, severe arthritis, and melanoma, among other health issues. The filing
also stated that once some of his conditions are under control, interferon treatment
is required for his hepatitis C, which requires strict monitoring. Without proper
medications, according to the filing, Chubbuck’s conditions could potentially
become exacerbated, thereby causing depression, suicide, increased intrusive
thoughts, hallucinatory flashbacks, nightmares, increased irritability, social
isolation, “bad” insomnia, weight loss, and low energy.
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sentence him in accordance with the sentencing guidelines, where the bottom of
the guidelines totaled 37.65 months. Chubbuck testified at the hearing that the
“Information for Court” is true and correct about himself and his conditions. The
document was admitted into evidence. Chubbuck acknowledged his prior military
service and that he was undergoing treatment for PTSD at the Veterans Affairs
(VA) Hospital. Additionally, Chubbuck’s fiancée testified that Chubbuck is “very
ill” and that she takes him to the VA Hospital “all the time.”
Counsel for Chubbuck told the trial court that Chubbuck is a “very, very ill
man,” and asked the court to terminate his probation and sentence him to time
served to allow for treatment of his various ailments at the VA Hospital.
Chubbuck’s counsel explained that Chubbuck “needs [i]nterferon treatment, which
works.” Relying on the downward departure ground set forth in subsection
921.0026(2)(d), Chubbuck’s counsel requested that the court find that a downward
departure is appropriate based on Chubbuck’s mental condition and physical
disabilities. The State, relying on State v. Betancourt, 40 So. 3d 53 (Fla. 5th DCA
2010), 4 argued that there was no evidence presented that DOC would be ill-
equipped to treat Chubbuck.
4. In Betancourt, the Fifth District Court of Appeal stated:
Notably, in order to demonstrate the need for specialized treatment, it
must be established that the mental disorder or physical disability
requires treatment that is not available in the [DOC]. Moreover, it is
well-established in the case law that a downward departure is
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The trial judge found as follows:
[T]he bottom line here is before the Court stands a man who has
served his country and put himself at risk. The documentation is clear
that as a result of serving this country, he has significant problems that
he’s trying to deal with.
The only violation before the Court is that the defendant, in the
light most favorable to the State, may have used a controlled
substance while on probation. Under no set of circumstances would I
send the defendant to prison in this scenario.
...
[T]he defendant is 66 years old. The nature of his problems [is]
far beyond the expertise of the [DOC]. . . . There is nothing that the
[DOC] will do that in anyway [sic] will address any significant issues
the defendant has.
The defendant is a former member of the Sheriff’s Office. He
has honorably served our country. He clearly has suffered for the rest
of his life for that. The question then becomes: given the . . . millions
of Americans who are actually either in prison or under some type of
supervised release, is there anything to be gained by the defendant
being placed back on probation other than to say, we put him back on
probation, and [have] it sound politically better? In other words, is
society better off because a 66-year-old hero, a veteran with
significant problems, is now being supervised by the [DOC]?
...
The Court recognizes that it must abide by the law . . . .
I’m going to make this very simple for the [a]ppellate [c]ourt
and for the State Attorney’s Office. . . . This defendant does not
belong in prison, and it’s absurd to have a 66-year-old man, who put
his life on the line for our country, and has the problems he now has
under the supervision of the [DOC]. It’s just called ludicrous.
The defendant has spent 97 days in jail because he tested
positive for cocaine, even if he used cocaine. I question whether
anybody in this courtroom or this world, who went what this
defendant went through in Vietnam when people like me sat home in
improper in the absence of evidence . . . that any such treatment could
not be provided by the [DOC].
Id. at 57.
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our living rooms and watched the war on television, would have
handled this any better than the defendant.
The defendant is not accused of committing any new crimes.
He is 66 years old. He has so many problems now dealing with
mental health and physical problems. The common sense says
enough is enough.
...
And the Court respects the State’s right to appeal. I just hope that
there comes a time when justice is not based solely on formulas and
mathematical calculations. This is an unusual case, and I believe
justice is best served by treating the time spent in jail as significant
punishment for the violation, and the defendant needs to move on with
his life.
The trial court revoked Chubbuck’s probation as unsuccessful, and sentenced him
to ninety-six days in jail with ninety-six days’ credit for time served.
On appeal, the State claimed that “because Chubbuck did not present
evidence that the [DOC] cannot provide the required specialized treatment, there
was no competent, substantial evidence to support the trial court’s decision to
impose a downward departure sentence under subsection 921.0026(2)(d).”
Chubbuck, 83 So. 3d at 920. The Fourth District, sitting en banc, held that the
plain language of subsection 921.0026(2)(d) does not require the defendant to
prove that the required specialized treatment is unavailable in the DOC. Id. at 921.
Consequently, the Fourth District “recede[d] from a line of [its] cases that imposes
a requirement on a sentencing statute that goes beyond the plain language of the
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statute”: State v. Hunter, 65 So. 3d 1123 (Fla. 4th DCA 2011),5 State v. Belluscio,
82 So. 3d 910 (Fla. 4th DCA 2011), 6 State v. Gatto, 979 So. 2d 1232 (Fla. 4th
DCA 2008),7 and State v. Green (Green II), 971 So. 2d 146 (Fla. 4th DCA 2007),8
and certified direct conflict with Scherber, 9 Wheeler, 10 Green I, 11 Mann, 12
5. In Hunter, the Fourth District upheld a departure sentence based on
subsection 921.0026(2)(d), finding that “the expert testified that the specialized
treatment the defendant needed was not available in the prison system, a
requirement for downward departure under section 921.0026(2)(d).” 65 So. 3d at
1125.
6. The Fourth District in Belluscio held as follows:
We find no error in the trial court’s imposition of a downward
departure sentence, because the defendant met his burden of proving
the requirements for a downward departure sentence, pursuant to
section 921.0026(2)(d), Florida Statutes (2009), and presented
unrebutted testimony that the defendant required specialized treatment
for mental health disorders unrelated to substance abuse, which was
not available at the [DOC].
82 So. 3d at 911.
7. “If a departure is to be permitted [under subsection 921.0026(2)(d)], the
defendant must also establish, by a preponderance of the evidence, that the [DOC]
cannot provide the required ‘specialized treatment.’ ” Gatto, 979 So. 2d at 1233.
8. In Green II, the Fourth District concluded as follows: “Green has the
burden of proving that the DOC could not provide the specialized treatment he
requires and such proof was not presented to the trial court. We reverse the
downward departure sentence and remand for resentencing.” 971 So. 2d at 148-49.
9. “To receive a sentence pursuant to . . . section [921.0026(2)(d)], a
defendant must prove that the [DOC] cannot provide the specialized treatment
required. . . .” Scherber, 918 So. 2d at 424-25.
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Tyrrell, 13 Thompson, 14 Abrams, Ford, 15 and Holmes. 16 Chubbuck, 83 So. 3d at
919, 923. The district court adopted Judge Warner’s reasoning provided in her
10. “To show that a defendant requires specialized treatment for a mental
disorder, ‘it must be established that the mental disorder requires treatment that is
not available in the [DOC].’ ” Wheeler, 891 So. 2d at 616 (quoting State v. Mann,
866 So. 2d 179, 182 (Fla. 5th DCA 2004)).
11. “Ms. Green did not meet her burden of establishing that the DOC could
not provide the specialized treatment required.” Green I, 890 So. 2d at 1286.
12. “This court and others have held that in order to establish the need for
specialized treatment, it must be established that the mental disorder requires
treatment that is not available in the [DOC].” Mann, 866 So. 2d at 182.
13. “[T]here was no evidence presented showing that Jones required
specialized treatment for his condition, or that any treatment he required could not
be adequately provided by the [DOC]. . . . Accordingly, no competent substantial
evidence supports Jones’s medical condition as a basis for a downward departure.”
Tyrrell, 807 So. 2d at 127-28.
14. “No evidence was presented to the trial court that specialized treatment
was required, or that any required treatment could not be provided by the [DOC].”
Thompson, 754 So. 2d at 127.
15. “Florida law . . . requires that, if a departure is to be permitted under
subsection [921.0026](2)(d), ‘the defendant must also establish, by a
preponderance of the evidence, that the [DOC] cannot provide the required
“specialized treatment.” ’ ” Ford, 48 So. 3d at 950 (quoting Gatto, 979 So. 2d at
1233).
16. The First District in Holmes concluded that the downward departure
sentence was not supported by competent substantial evidence, finding that
“[t]here is no evidence in the record that DOC could not or would not
accommodate any treatment needed.” 909 So. 2d at 528.
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special concurrence in Hunter. 17 Chubbuck, 83 So. 3d at 921. The Fourth District
concluded by reversing Chubbuck’s sentence and remanding for a new sentencing
hearing:
Because the state was not on notice of this court’s present view
of subsection 921.0026(2)(b) at the time of the sentencing hearing, we
reverse the sentence to provide the state another opportunity to present
evidence as to whether the [DOC] can provide the required
“specialized treatment.” Although the state had the opportunity to
present such evidence at the sentencing hearing, we recognize the
possibility that the state did not present such evidence given this
court’s view of the law at that time. We emphasize, however, that if
the state presents such evidence at the new sentencing hearing, the
trial court is not precluded from granting the defendant’s request for a
downward departure for the same reasons. Rather, the state’s
evidence is merely an additional factor which the trial court may
consider in exercising its discretion as to whether to grant the
defendant’s request for a downward departure.
Id. at 923.18 Thereafter, the State sought to invoke this Court’s discretionary
jurisdiction and moved to recall and stay the issuance of the district court’s
mandate, which we granted.
17. In Hunter, Judge Warner concluded that subsection 921.0026(2)(d)
“does not require the defendant to offer proof that the prison system does not
provide the specialized treatment that the defendant requires.” 65 So. 3d at 1126-
27 (Warner, J., concurring specially). Judge Warner argued that courts have
placed an additional burden on the defendant, not required by the Legislature, and
found that “nothing in the legislative history even hints” that services must be
unavailable in prison to treat the condition. Id. at 1126 (Warner, J., concurring
specially). Judge Warner also maintained that the burden of proving a negative is
problematic for the defense, as tracking down all of the DOC’s available treatment
may be a “daunting and very expensive task.” Id. (Warner, J., concurring
specially).
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ANALYSIS
The question before us is whether subsection 921.0026(2)(d) requires the
defendant to prove that the required specialized treatment he needs is unavailable
in the DOC. As the issue presented is one of statutory interpretation, the standard
of review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 194 (Fla.
2007).
A trial court may impose a downward departure below the lowest
permissible sentence if it finds, by a preponderance of the evidence, circumstances
or factors that reasonably justify the downward departure. §§ 921.0026(1),
921.002(1)(f), Fla. Stat. (2009).19 A downward departure sentence is subject to
appellate review, but the extent of the departure is not. § 921.0026(1), Fla. Stat. In
18. In his special concurrence in Chubbuck, Judge Gross found that the
record contains reasons which supported Chubbuck’s downward departure
sentence other than subsection 921.0026(2)(d). Id. at 924 (Gross, J., concurring
specially). Judge Gross noted that the trial judge also considered Chubbuck’s age
and that he was not a danger to the general public. Id. (Gross, J., concurring
specially).
19. A departure sentence:
must be accompanied by a written statement by the sentencing court
delineating the reasons for the departure, filed within 7 days after the
date of sentencing. A written transcription of reasons stated orally at
sentencing for departure from the lowest permissible sentence is
permissible if it is filed by the court within 7 days after the date of
sentencing.
§ 921.00265(2), Fla. Stat. (2009).
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Banks v. State, 732 So. 2d 1065 (Fla. 1999), this Court set out the process for
departing from the guidelines:
A trial court’s decision whether to depart from the guidelines is
a two-part process. First, the court must determine whether it can
depart, i.e., whether there is a valid legal ground and adequate factual
support for that ground in the case pending before it (step 1). Legal
grounds are set forth in case law and statute, and facts supporting the
ground must be proved at trial by “a preponderance of the evidence.”
This aspect of the court’s decision to depart is a mixed question of law
and fact and will be sustained on review if the court applied the right
rule of law and if competent, substantial evidence supports its ruling.
Competent, substantial evidence is tantamount to legally sufficient
evidence, and the appellate court will assess the record evidence for
its sufficiency only, not its weight.
Second, where the step one requirements are met, the trial court
further must determine whether it should depart, i.e., whether
departure is indeed the best sentencing option for the defendant in the
pending case. In making this determination (step 2), the court must
weigh the totality of the circumstances in the case, including
aggravating and mitigating factors. This second aspect of the decision
to depart is a judgment call within the sound discretion of the court
and will be sustained on review absent an abuse of discretion.
Discretion is abused only where no reasonable person would agree
with the trial court’s decision.
Id. at 1067-68 (footnotes omitted).
Section 921.0026(2) sets out a non-exclusive list of mitigating circumstances
under which a downward departure sentence is reasonably justified for non-capital
felonies committed on or after October 1, 1998. See § 921.0026(2)(a)-(m), Fla.
Stat. Under paragraph (2)(d), the mitigating circumstance at issue, a trial court
may depart from the lowest permissible sentence if the defendant requires
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“specialized treatment” for a mental disorder (unrelated to substance abuse or
addiction) or for a physical disability, and the defendant is amenable to treatment.
§ 921.0026(2)(d), Fla. Stat.; Ch. 97-194, § 8, Laws of Fla.20
Chapter 921 does not define “specialized treatment.” As observed by Judge
Warner, the requirement that the defendant must prove that the specialized
treatment is unavailable in the DOC “appears to have had its origins in Abrams.”
Hunter, 65 So. 3d at 1125 (Warner, J., concurring specially). In Abrams, the
Second District noted that “[a] defendant’s need for specialized treatment for
physical disability and amenability to treatment is a valid reason for departure.”
706 So. 2d at 904. The district court in Abrams reversed the defendant’s
downward departure sentence because “[t]here is no evidence in the record . . . that
Mr. Abrams requires specialized treatment for HIV that cannot be provided
through the [DOC].” Id. (emphasis added).
20. Pursuant to section 945.12, Florida Statutes (2013), prisoners who
require “specialized” treatment may be transferred from the DOC to another
facility to receive treatment:
The [DOC] is authorized to transfer substance abuse impaired
persons . . . and tuberculous or other prisoners requiring specialized
services to appropriate public or private facilities or programs for the
purpose of providing specialized services or treatment for as long as
the services or treatment is needed, but for no longer than the
remainder of the prisoner’s sentence.
§ 945.12(1), Fla. Stat. (2013) (emphasis added).
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The Second District in Abrams did not cite to any authority which stood for
the proposition that there must be record evidence establishing that specialized
treatment could not be provided by the DOC. There was no reference to any
statutory provision in the opinion; the district court simply cited to the Sentencing
Guidelines Scoresheet in Florida Rule of Criminal Procedure 3.990. Id. Abrams
was decided in February 1998, which was prior to the effective date of subsection
921.0026(2)(d). Presumably, the downward departure ground in Abrams involved
subsection 921.0016(4)(d), Florida Statutes (1994), which became effective in
January 1994 and provided for a downward departure if the defendant required
treatment of a specialized nature for addiction, a mental disorder, or a physical
disability and the defendant was amenable to treatment. § 921.0016(4)(d), Fla.
Stat.; Ch. 93-406, § 13. Subsection 921.0016(4)(d) was amended to include the
exact same language now found in subsection 921.0026(2)(d), and was repealed
effective October 1, 1998, but applies to any offenses committed before that date.
Ch. 97-194, § 1, at 41, Laws of Fla. In sum, none of the versions of subsection
921.0016(4)(d) requires that the specialized treatment be unavailable in the DOC.
Since the Abrams decision, each of our district courts of appeal have
concluded that the defendant’s required specialized treatment must be unavailable
in the DOC in order for subsection 921.0026(2)(d) to apply. See, e.g., Holmes,
909 So. 2d at 528; State v. Hall, 981 So. 2d 511, 514 (Fla. 2d DCA 2008); State v.
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Massingill, 77 So. 3d 677, 680 (Fla. 3d DCA 2011); Gatto, 979 So. 2d at 1233;
State v. Knox, 990 So. 2d 665, 668 (Fla. 5th DCA 2008), rev. denied, 68 So. 3d
234 (Fla. 2011). However, like the Fourth District’s decision in Chubbuck, the
Fifth District, sitting en banc, recently held that there is no such requirement. State
v. Owens, 95 So. 3d 1018, 1019 (Fla. 5th DCA 2012) (en banc). In Owens, the
Fifth District determined that its previous view was erroneous because it added an
extra requirement that went beyond the plain language of subsection
921.0026(2)(d). Id. The Owens court also adopted the reasoning of Judge
Warner’s special concurrence in Hunter. Id. The Fifth District accordingly
affirmed the defendant’s downward departure sentence even though there was no
“evidence as to the treatment options available to [the defendant] in the DOC”
related to his mental disorder. Id. at 1019, 1021.21
It is a fundamental principle of Florida jurisprudence that penal statutes must
be strictly construed. See Perkins v. State, 576 So. 2d 1310, 1312 (Fla. 1991); see
also § 775.021(1), Fla. Stat. (2009) (“The provisions of th[e] [Florida Criminal]
[C]ode and offenses defined by other statutes shall be strictly construed; when the
language is susceptible of differing constructions, it shall be construed most
favorably to the accused.”); § 775.012(2), Fla. Stat. (2009) (stating that one general
21. As a result of its holding, the Fifth District “recede[d] from [its] cases
[which] add[ed] the additional requirement to the statute,” and certified direct and
express conflict with the decisions of the district courts in Ford, Scherber, Holmes,
Wheeler, Green I, and Abrams. Owens, 95 So. 3d at 1019, 1021.
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purpose of the criminal code is to give an understandably fair warning of
authorized sentences).
In construing subsection 921.0026(2)(d), our analysis begins with the actual
language of the statute. See Heart of Adoptions, Inc., 963 So. 2d at 198. In Koile
v. State, 934 So. 2d 1226 (Fla. 2006), this Court explained:
When the statute is clear and unambiguous, courts will not look
behind the statute’s plain language for legislative intent or resort to
rules of statutory construction to ascertain intent. In such instance, the
statute’s plain and ordinary meaning must control, unless this leads to
an unreasonable result or a result clearly contrary to legislative intent.
Id. at 1230-31 (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64-65 (Fla.
2005) (internal citation omitted)). Courts should not construe unambiguous
statutes in a manner that would extend, modify, or limit their terms or the obvious
implications as provided by the Legislature. See Holly v. Auld, 450 So. 2d 217,
219 (Fla. 1984); see also Curry v. Lehman, 47 So. 18, 20 (Fla. 1908) (“[I]t is the
duty of the court to interpret laws and not to make them, and we are to make no
subtraction or addition to the meaning of a statute.”).
We find subsection 921.0026(2)(d) to be clear and unambiguous, and
therefore, the plain and ordinary meaning must control. We conclude that the plain
language of subsection 921.0026(2)(d) does not require the defendant to prove that
the required specialized treatment is unavailable in the DOC. We further find that
this interpretation does not lead to an unreasonable result or a result clearly
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contrary to legislative intent. Accordingly, a defendant who is requesting a
downward departure sentence pursuant to subsection 921.0026(2)(d) must prove
the following three elements by a preponderance of the evidence: (1) the defendant
has a mental disorder (unrelated to substance abuse or addiction) or a physical
disability; (2) which requires specialized treatment; and (3) the defendant is
amenable22 to such treatment.
We additionally note that our Legislature has included “specialized
treatment otherwise not available” language in a separate statute, section
958.11(3)(c), Florida Statutes (2013). Section 958.11(3)(c) authorizes the DOC to
assign a youthful offender to a facility not designed for the care, custody, control,
and supervision of youthful offenders if the offender needs “specialized treatment
otherwise not available at the youthful offender facility.” § 958.11(3)(c), Fla. Stat.
Had the Legislature intended to require unavailability of specialized treatment in
the DOC as an element of subsection 921.0026(2)(d), it could have said so. See
Hopkins v. State, 105 So. 3d 470, 474 (Fla. 2012) (“Had the Legislature intended
to exclude juvenile detention centers from the scope of section 784.082, it would
have said so.”); Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d
777, 778 (Fla. 1st DCA 1968) (“Had the legislature intended the statute to import a
22. We have previously defined “amenability” as “a reasonable possibility
that . . . treatment will be successful.” Herrin v. State, 568 So. 2d 920, 922 (Fla.
1990).
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more specific and definite meaning, it could easily have chosen words to express
any limitation it wished to impose.”).
This Case
In light of our holding, we agree with the Fourth District’s decision to
reverse Chubbuck’s downward departure sentence and remand for a new
sentencing hearing in order to afford the State an opportunity to present evidence,
if any, as to whether the DOC can provide the required specialized treatment.
Evidence which demonstrates that the DOC can so provide is one factor for the
trial court’s consideration in deciding whether to give a downward departure
sentence.
CONCLUSION
Based on the foregoing, we hold that the defendant is not required to prove
that the DOC cannot provide the required specialized treatment in seeking a
downward departure sentence under subsection 921.0026(2)(d). In light of the
above, we approve the Fourth District’s decision in Chubbuck and we disapprove
the decisions of the district courts in Ford, Scherber, Holmes, Wheeler, Green I,
Mann, Tyrrell, Thompson, and Abrams, which hold to the contrary.
It is so ordered.
POLSTON, C.J., and LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.
QUINCE, J., concurs in part and dissents in part with an opinion, in which
PARIENTE, J., concurs.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
QUINCE, J., concurring in part and dissenting in part.
I concur in the majority’s conclusion that the plain language of subsection
921.0026(2)(d), does not require a defendant to prove that the required specialized
treatment is unavailable in the Department of Corrections. I respectfully dissent,
however, from the majority’s decision to remand the case back to the trial court for
a new sentencing hearing because there is competent, substantial evidence that the
defendant has satisfied all that is necessary under subsection 921.0026(2)(d).
PARIENTE, J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Fourth District – Case No. 4D10-5014
(Palm Beach County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Celia Terenzio, Bureu
Chief, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach,
Florida,
for Petitioner
Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public
Defender, West Palm Beach, Florida,
for Respondent
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