JAMES GREEN v. STATE OF FLORIDA , 257 So. 3d 474 ( 2018 )


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  •              DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    JAMES GREEN,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D17-3276
    [October 3, 2018]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Tim Bailey, Judge; L.T. Case Nos. 14-00473 CF10A,
    14-01835 CF10A and 16-07912 CF10A.
    Lee Friedland of Friedland & Associates, P.A., Fort Lauderdale, for
    appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
    Melear, Senior Assistant Attorney General, West Palm Beach, for
    appellee.
    CIKLIN, J.
    This appeal arises from the trial court’s denial of the defendant’s
    request for a downward departure sentence based on his mental health
    condition. We find the trial court erred in determining that it lacked the
    discretion to impose a downward departure sentence, and we reverse and
    remand for further proceedings before a different judge.
    The defendant was before the trial court for sentencing on two
    violation of probation matters as well as new offenses involving harassing
    telephone calls to the judge then presiding over his case. Prior to
    sentencing, the defendant was found incompetent to proceed based on
    mental illness.     Four months later, after receiving treatment at a
    competency restoration center, he was found competent and transferred
    to the county jail.
    In a written motion, the defendant sought a downward departure
    sentence pursuant to section 921.0026(2)(c) and section 921.0026(2)(d),
    Florida Statutes (2017). 1
    After an evidentiary hearing during which a psychologist testified on
    the defendant’s behalf, the trial court found the defendant “has a mental
    [dis]order [that is] unconnected with substance abuse,” but it denied the
    motion, finding that the “doctor said he is not amenable” and that
    “[n]obody said [that the defendant] will cooperate and take his meds.
    [There is] [z]ero evidence on that.” The court reiterated that there was
    “no evidence” of the defendant’s amenability to treatment. The court did
    not make any findings as to the other ground for departure raised by the
    defendant.
    In reviewing a trial court’s denial of a request for a downward
    departure sentence, this court applies a “mixed, two-part review,” which
    first addresses whether competent substantial evidence supports the
    trial court’s finding as to “whether there is a valid legal ground and
    adequate factual support for that ground” (step one), and next addresses
    whether the trial court abused its discretion in determining that it
    should not depart (step two). Kovalsky v. State, 
    220 So. 3d 1192
    , 1194-
    95 (Fla. 4th DCA 2017). Here, the trial court erred in two respects, both
    relating to step one of the process.
    First, the court found that there was no evidence of the defendant’s
    amenability to treatment. But the record clearly belies this notion. For a
    trial court to find that a defendant is amenable to treatment, “[t]here
    must be evidence that there is a reasonable possibility that such
    treatment will be successful.” State v. Hillhouse, 
    708 So. 2d 326
    , 327
    (Fla. 2d DCA 1998); see also State v. Skidmore, 
    755 So. 2d 647
    , 648 (Fla.
    4th DCA 1999) (“In order to impose a departure sentence [based on
    necessity of and amenability to treatment for a mental disorder], there
    must be competent substantial evidence to establish that the defendant
    exhibits the potential to be rehabilitated.”).
    Here, the psychologist, Dr. Michael Brannon, testified that the
    defendant was amenable to specialized treatment involving placement in
    a dual diagnosis residential treatment facility with follow up care, as he
    1 Pursuant to section 921.0026(2)(c), the trial court may impose a downward
    departure sentence where the “capacity of the defendant to appreciate the
    criminal nature of the conduct or to conform that conduct to the requirements
    of law was substantially impaired.” Pursuant to section 921.0026(2)(d), the
    trial court may impose a downward departure sentence where the “defendant
    requires specialized treatment for a mental disorder that is unrelated to
    substance abuse or addiction . . . and the defendant is amenable to treatment.”
    2
    had insight into the effects of his disorder, family support, and a
    reasonable chance of being able to complete a program. We recognize
    that there was evidence that the defendant stopped taking his medication
    upon his return to the jail. However, Dr. Brannon explained that this
    was not a surprise, as those suffering from schizo-affective disorder
    sometimes stop taking their medication while they are in jail or prison
    because they feel threatened by the environment. Dr. Brannon also
    suggested that unlike a residential dual-diagnosis program offering the
    specialized treatment the defendant required, the jail might lack
    medication compliance groups that focus on “encourag[ing] the person to
    continue to take their medication.” Dr. Brannon observed that when the
    defendant had been treated in a place with more structure, such as the
    competency restoration center, he had done “very well.”
    In short, although there was conflicting evidence as to the defendant’s
    amenability to treatment, there was not a total lack of evidence on this
    point, as the trial court erroneously stated, and there was in fact
    sufficient evidence to depart. 2
    The trial court also erred in failing to consider the other ground for
    departure put forth by the defendant. There was evidence which could
    support a departure sentence based on section 921.0026(2)(c). Dr.
    Brannon opined that the statements the defendant made in harassing
    communications directed to the first judge presiding over his case were
    consistent with his diagnosis and “very consistent with delusional
    beliefs.” He elaborated:
    Just in terms of a judgment to do that, and him leaving
    messages and things like that, how poor the judgment is
    with that is consistent with mental illness.
    But the content, meaning the suspiciousness and
    expectations that he was being treated unfairly within the
    system by that judge, and then referenced to personal notes
    as well, is more suggestive of mental illness.
    This is the person deciding your fate, deciding at least in
    terms of your freedom, so to incite that situation with such
    2 The state argues that we could affirm based on the defendant’s failure to prove
    his mental health disorder required specialized treatment. We find no merit in
    this argument. Dr. Brannon testified that schizo-affective disorder requires
    specialized treatment involving medication and structured environments to help
    the person continue to comply.
    3
    personal commentary, although not unheard of, in his
    particular case would be more consistent with his paranoid
    delusions.
    The trial court did not make any findings regarding whether there was
    competent substantial evidence supporting departure under section
    921.0026(2)(c).
    For the foregoing reasons, we find that the trial court erred in making
    a specific finding that it lacked discretion to depart downward with
    respect to section 921.0026(2)(d) and further by failing to consider
    whether the evidence supported departure under section 921.0026(2)(c).
    We reverse the defendant’s sentences and remand for further
    proceedings before a different judge.
    Reversed and remanded for further proceedings before a different
    judge.
    MAY, J., and HARPER, BRADLEY, Associate Judge, concur.
    *         *        *
    Not final until disposition of timely filed motion for rehearing.
    4
    

Document Info

Docket Number: 17-3276

Citation Numbers: 257 So. 3d 474

Filed Date: 10/3/2018

Precedential Status: Precedential

Modified Date: 10/3/2018