AUSTIN WARIANEK

v.

STATE OF FLORIDA

LaROSE, Judge. Austin Warianek appeals the orders revoking his probation and sentencing him to prison. We have jurisdiction, see Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(D), (F), and affirm. We write principally to explain why, in rejecting Mr. Warianek's downward departure request, the trial court properly considered the Department of Correction's (DOC) ability to provide Mr. Warianek with specialized treatment.

- 2 - Background Several weeks after turning twenty, Mr. Warianek pleaded guilty to two counts of burglary.

Pursuant to a negotiated disposition, the trial court sentenced him as a youthful offender to four years' probation. Approximately two years later, Mr. Warianek violated his probation. He admitted to violating the terms of his probation. He requested a downward departure sentence consisting of residential treatment, "includ[ing] mental health and substance abuse treatment" for his "major depression and substance abuse disorder." See § 921.0026(2)(d), Fla. Stat. (2018).

After conducting a hearing and receiving the testimony and reports of several mental health experts, the trial court rejected Mr. Warianek's request. In its oral ruling, the trial court stated that it was denying the "motion for departure because the legal requirements for me to consider it have not been met." The trial court found that Mr. Warianek failed to present competent substantial evidence that he suffered from a mental disorder. Specifically, the trial court took issue with Mr. Warianek's expert's testimony that, in the words of the trial court, Mr. Warianek "most likely suffered from major depressive disorder and substance abuse disorder just based on their statements, particularly, when he has been in treatment before." The trial court also was troubled by the expert's conclusion "that there were no treatment facilities available in the DOC." The trial court noted "[t]hat is untrue because I see this so often day in and day out. . . . Granted there's not a lot of them, but there are some. So, I'm not saying she intentionally lied, but she's misinformed. So, I wouldn't find anything she said to be substantial competent evidence of anything."

- 3 - Instead of a downward departure, the trial court sentenced Mr. Warianek to thirty-three months' imprisonment.1 Analysis A downward departure sentence is any sentence below the lowest permissible sentence "calculated according to the total sentence points pursuant to [section] 921.0024." § 921.0026(1).

Section 921.0026(2) lists the nonexclusive factors reasonably justifying a downward departure sentence. On the list is the ground upon which Mr. Warianek relied: "The 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).

Mr. Warianek assails the trial court's denial of a downward departure sentence. He ventures various arguments. According to him, "the only thing that is necessary is for the defendant to show by a preponderance of evidence that he has a qualifying mental or physical disorder, and that he is amenable to treatment." (Emphasis added.) Seemingly, Mr. Warianek contends that these two factors, if proven, entitle a defendant to a downward departure sentence. He also alerts us that "there is no requirement for a defendant to show that the programs or treatment he desires [are] unavailable in the [DOC] setting." Mr. Warianek too lightly describes his burden. The statute and case law make clear that Mr. Warianek must prove, by the preponderance of the evidence, that 1At the conclusion of the departure sentencing hearing, the trial court sentenced Mr. Warianek, pursuant to the sentencing guidelines, to 39.5 months' imprisonment.

However, after the State alerted the trial court to errors in the scoresheet, the trial court vacated that sentence and imposed the thirty-three-month term of imprisonment.

- 4 - "(1) [he] has a mental disorder (unrelated to substance abuse or addiction) or a physical disability; (2) which requires specialized treatment; and (3) [he] is amenable to such treatment." State v. Chubbuck, 141 So. 3d 1163, 1171 (Fla. 2014) (footnote omitted); § 921.0026(2)(d).

In determining whether a downward departure sentence is appropriate, the trial court engages in a two-step process. "[T]he trial court must first determine 'whether there is a legal basis to depart and whether the defendant has proven the factual support for that basis by a preponderance of the evidence.' " Williams v. State, 286 So. 3d 892, 896 (Fla. 2d DCA 2019) (quoting Camacho v. State, 164 So. 3d 45, 47 (Fla. 2d DCA 2015)).

In other words, the trial court must first assess "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)." Chubbuck, 141 So. 3d at 1168 (quoting Banks v. State, 732 So. 2d 1065 (Fla. 1999)). "Adequate factual support" amounts to competent substantial evidence. See id.; Williams, 286 So. 3d at 896; see also Savage v. State, 120 So. 3d 619, 621-22 (Fla. 2d DCA 2013) ("[T]he supreme court defined competent substantial evidence as 'such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.' " (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957))).

Then, "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 (step²), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors." Banks, 732 So. 2d at 1068 (footnote omitted). "The second step 'is a judgment call within the sound

- 5 - discretion of the [trial] court'-whether the trial court should depart." State v. Johnson, 288 So. 3d 765, 767 (alteration in original) (quoting Banks, 732 So. 2d at 1068).

In reviewing step², we "evaluat[e] whether the trial court abused its discretion in weighing the totality of circumstances to determine whether departure is the 'best option' for the defendant." Id. at 767-68 (quoting State v. Imber, 223 So. 3d 1070, 1071-72 (Fla. 2d DCA 2017)); see also Williams v. State, 279 So. 3d 839, 843-44 (Fla. 1st DCA 2019) ("Confronted with a downward-departure sentence, we analyze three issues: whether the trial court had a valid reason to depart; whether competent, substantial evidence supports the reason; and whether departure is the best sentencing option for the defendant.").² Warianek is, indeed, correct that section 921.0026(2)(d) imposes no burden on him to prove that DOC cannot provide the specialized treatment he needs. See Chubbuck, 141 So. 3d at 1171 (holding that as part of a downward departure sentencing pitch, a "defendant is not required to prove that the DOC cannot provide the required specialized treatment").

But, Mr. Warianek confuses the absence of any duty with the scope of evidence the trial court may consider in evaluating whether to grant a downward departure sentence. Simply because Mr. Warianek need not prove the unavailability of specialized treatment in the DOC does not mean that the trial court cannot consider that the DOC provides the treatment. Interestingly, in Chubbuck the court remanded for a new sentencing hearing to provide "the State an opportunity to present evidence, if any, 2Insofar as Mr. Warianek contends that he is entitled to a downward departure because he satisfied step 1, he is mistaken. He overlooks step², and its discretionary nature.

- 6 - 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." 141 So. 3d at 1171 (emphasis added).

The trial court noted that Phoenix House, a DOC-run program, would be an appropriate treatment for Mr. Warianek's professed condition. Unfortunately for Mr. Warianek, "there was nothing in front of [the trial court] that said Phoenix House was going to take him." The trial court's observation hews to Chubbuck. Indeed, there would be no point in granting a downward departure treatment-based sentence as an alternative to incarceration when no such treatment is available outside of the DOC. To interpret section 921.0026(2)(d) in such a manner would be illogical. Cf. Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So. 2d 256, 263 (Fla. 1970) ("It is fundamental that a statute should be given a reasonable interpretation. No literal interpretation should be given which leads to an unreasonable or ridiculous conclusion.").

Finally, we are unpersuaded by Mr. Warianek's argument that he does not have to prove "that treatment will be successful." Once again, he understates his burden. See Chubbuck, 141 So. 3d at 1171 n.22 (noting that when discussing the amenability-to-treatment prong, "[w]e have previously defined 'amenability' as 'a reasonable possibility that . . . treatment will be successful" (quoting Herrin v. State, 568 So. 2d 920, 922 (Fla. 1990))); see, e.g., State v. Grayson, 916 So. 2d 51, 53 (Fla. 2d DCA 2005) ("To support its departure from the recommended sentence, the trial court was required to find that, based on the evidence produced at the hearing, Grayson had

- 7 - a mental disorder that required specialized treatment and that there was a reasonable possibility that the treatment would be successful."). Mr. Warianek's expert was equivocal as to whether specialized treatment would, with reasonable possibility, be successful. And, the trial court could properly consider Mr. Warianek's unsuccessful prior treatment in denying a downward departure sentence. Conclusion We affirm the trial court's orders revoking Mr. Warianek's probation and sentencing him to prison. In doing so, we approve of the trial court's consideration that the treatment program sought by Mr. Warianek was available in the DOC. Affirmed. KHOUZAM, C.J., and CASE, JAMES R., Associate Senior Judge, Concur.