THE STATE OF FLORIDA, APPELLANT,
v.
MENDOZA ALEXANDER, APPELLEE
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The court held that a downward departure sentence was inappropriate because the trial court's stated reason for departure was legally insufficient.
The defendant was charged with several offenses and accepted a plea offer involving probation and participation in the MDSO program. The trial court i…
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PER CURIAM.
The state seeks reversal of a downward sentence deviation. The defendant was charged with kidnapping, three counts of sexual battery, and unlawful possession of a firearm by a convicted felon. After reviewing two psychological evaluations, the trial court made a plea offer requiring the defendant to participate in the Mentally Disordered Sex Offenders (MDSO) program during a ten-year probation to follow a minimum mandatory three-year term of imprisonment. The defendant accepted the offer and was convicted. The sentence entered deviated downward from the guidelines scoresheet recommendation of a twenty-two to twenty-seven year sentence. The judge’s reason for the departure was that “there is no possibility of receiving such [mentally disordered sex offender] treatment during 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.3d DCA 1988), and State v. Twelves, 463 So. 2d 493 (Fla.2d DCA 1985), where the reasons for sentencing below the guidelines involved findings that the defendants had a strong motivation to be rehabilitated, the judge here made no such finding in his order. He merely stated that the defendant “freely admitted his guilt ... and is amenable to treatment.” This finding is not equivalent to a showing of a strong motivation for rehabilitation; thus, Forbes and Twelves are not controlling.
Consequently, we reverse. Upon remand, the defendant shall be given the option to withdraw his plea and go to trial or be resentenced within the guidelines.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Mendoza Alexander, 591 So. 2d 1029 (Fla. 3d DCA 1991)…g a downward departure sentence to a sex offender.1 We held that the trial court erred in reasoning that the downward deviation was acceptable because the defendant could not receive mentally disordered sex offender (MDSO) treatment while in prison. 584 So. 2d 174. We concluded that pursuant to section 917.012, MDSO treatment was available in prison; thus the downward departure was improper. Since the issuance of the mandate entered in this appeal on August 29, 1991, and after the expiration of the rehearing…
Authorities Cited
- State v. Twelves, 463 So. 2d 493 (Fla. 2d DCA 1985)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)
- Sweat v. State, 454 So. 2d 749 (Fla. 1st DCA 1984)
- Dodd v. State, 471 So. 2d 668 (Fla. 5th DCA 1985)