JOSEPH KARL DODD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Karl Dodd appeals his sentence for incest, which departed from sentencing guidelines by imposing state prison rather than a non-prison sanction. The Fifth District Court of Appeal affirmed, holding that a judicial determination that a convicted sex offender is a mentally disordered sex offender (MDSO) constitutes a sufficient reason to depart from guidelines when MDSO treatment requires incarceration.
Yes. A judicial determination that a convicted sex offender is a mentally disordered sex offender and in need of MDSO treatment is a sufficient reason to depart from sentencing guidelines. The more particular MDSO statute prevails over the more general sentencing guideline statute when a person qualifies for MDSO treatment.
[1] A judicial determination that a convicted sex offender requires treatment under the Mentally Disordered Sex Offender (MDSO) program is a sufficient reason to depart from…
[2] When a defendant qualifies for MDSO treatment, the more particular MDSO statute prevails over the more general sentencing guideline statute.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“whether a judicial determination that a convicted sex offender is a mentally disordered sex offender is a sufficient reason to depart from the sentencing guidelines. We answer the question in the affirmative”
States the issue and the court's holding on the central question of whether MDSO status justifies guideline departure
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Join FLexlaw to unlock all legal intelligenceDodd was convicted of incest. The sentencing guidelines recommended any non-state prison sanction. However, the sentencing judge departed from the gui…
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DAUKSCH, Judge.
This is an appeal from a sentence which departed from the recommended guidelines.
Appellant was convicted of incest. The recommended guidelines sentence is any nonstate prison sanction. Rule 3.988, Fla. R.Crim.P. The sentencing judge departed for the reason that appellant needs treatment under the Mentally Disordered Sex Offender (MDSO) program. Under the MDSO statute the only way a convict can get the MDSO treatment is if he is in the state prison. § 917.012, Fla.Stat. (1983). So, the question on appeal is whether a judicial determination that a convicted sex offender is a mentally disordered sex offender is a sufficient reason to depart from the sentencing guidelines. We answer the question in the affirmative and thus affirm the sentence. In so doing we align ourselves with the First District Court of Appeal in their determination in Dorman v. State, 457 So. 2d 503 (Fla. 1st DCA 1984) and Sweat v. State, 454 So. 2d 749 (Fla. 1st DCA 1984) that those persons who are in need of MDSO treatment are not entitled to a nonstate prison sanction. Without a consideration of the committee notes and their changes as discussed in the Dorman and Sweat opinions we base our ruling upon the simple logic that if a convict is judicially determined to be in need of MDSO treatment and because the only way a judge’s recommendation for that treatment can be followed by the state is while-the convict is in prison then the guidelines statute must yield to the MDSO statute in order for the state to follow the recommendation. It is our opinion that the more particular MDSO statute should prevail over the more general sentencing guideline statute when a person qualifies for the treatment. The sentence is affirmed.
AFFIRMED.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.
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Citator
Cited By
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Lorenzo v. State, 483 So. 2d 790 (Fla. 4th DCA 1986)…rial court may depart from the recommended guidelines sentence on the basis of a defendant’s need for treatment under the Mentally Disordered Sex Offender (MDSO) program where the recommended sentence is any non-state prison sanction. Dodd v. State, 471 So. 2d 668 (Fla. 5th DCA 1985). Under the MDSO statute the only way a convict can get the MDSO treatment is if he is in the state prison. § 917.012, Fla. Stat. (1983). So, the question on appeal is whether a judicial determination that a convicted sex offende…
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State v. Mendoza Alexander, 584 So. 2d 174 (Fla. 3d DCA 1991)…ng the period of incarceration.” We reverse the sentence and remand the case to the trial court for resentencing. According to section 917.012, Florida Statutes (1989), a convict can only receive MDSO treatment while in prison. See Dodd. v. State, 471 So. 2d 668 (Fla. 5th DCA 1985); Sweat v. State, 454 So. 2d 749 (Fla. 1st DCA 1984). Therefore, since the only effective way to get treatment is while in prison, the departure sentence was inappropriate. Moreover, unlike State v. Forbes, 536 So. 2d 356 (Fla.3…
Authorities Cited
- Sweat v. State, 454 So. 2d 749 (Fla. 1st DCA 1984)
- Dorman v. State, 457 So. 2d 503 (Fla. 1st DCA 1984)