STATE OF FLORIDA, APPELLANT,
v.
LARRY BOSTICK, APPELLEE
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The State appeals a downward departure sentence imposed on Bostick for cocaine delivery. The trial court sentenced him to community control and drug rehabilitation instead of the guideline range of 22.3 to 37.2 months, but did so without establishing sufficient evidentiary basis that he was amenable to treatment as required by statute.
A downward departure sentence cannot be imposed under § 921.0016(4)(d) without competent substantial evidence that the defendant is amenable to treatment; the defendant's word alone is insufficient. On remand, Bostick must be allowed to withdraw his plea or be resentenced under the guidelines, though the trial judge may later impose the same sentence if proper evidentiary requirements are met.
[1] A downward departure sentence imposed without a sufficient evidentiary basis in the record must be reversed.
[2] A defendant's word alone is insufficient to establish amenability to drug rehabilitation for purposes of a downward sentencing departure.
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Join FLexlaw to unlock all legal intelligence“To justify a departure under this provision, however, the court must receive competent substantial evidence that the defendant is indeed amenable to treatment.”
Establishes the evidentiary standard required for downward departures based on drug treatment amenability
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Join FLexlaw to unlock all legal intelligenceBostick pleaded guilty to delivery of cocaine after the trial judge indicated willingness to place him in a drug rehabilitation program with community…
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STEVENSON, Judge.
The State of Florida appeals the sentence of community control and participation in a drug rehabilitation program imposed upon appellee following his plea of guilty to one count of delivery of cocaine. The sentencing guidelines called for a prison sentence of 22.3 to 37.2 months. • We reverse the downward departure sentence as it was imposed without reasons and a sufficient evi" dentiary basis in the record.
This ease does not involve a plea offer from the State; rather, prior to entry of the plea, appellee indicated his desire for drug treatment, and the trial judge said that she would be willing to place appellee in the Spectrum drug program with community control. With this assurance, appellee pled guilty to delivery of cocaine.
The departure sentence in this case was most likely based on section 921.0016(4)(d), Florida Statutes (Supp.1996), which permits a downward departure where “[t]he defendant requires specialized treatment for addiction, mental disorder, or physical disability, and is amenable to treatment.”1 To justify a departure under this provision, however, the court must receive competent substantial evidence that the defendant is indeed amenable to treatment. See Herrin v. State, 568 So. 2d 920 (Fla.1990). The defendant’s word alone is insufficient to establish that he is a suitable candidate for drug rehabilitation. See State v. Gordon, 645 So. 2d 140, 142 (Fla. 3d DCA 1994). On remand, appellee must be allowed' to withdraw his plea or be sentenced under the guidelines. Of course, this opinion does not preclude the trial judge, following an adjudication of guilt, from resentencing appellee to the same sentence initially imposed so long as the evidentiary requirements discussed herein are met'.- See id-
We reject appellee’s argument that , the supreme court’s decision in Pease v. State, 712 So. 2d 374 (Fla.1997), mandates an affirmance. Under Pease, once it is established on appeal that valid reasons for mitigation were established and explicated at the time of sentencing, the trial court’s failure to file its written reasons for the departure is properly remedied with a simple remand to the trial court to supply the missing written reasons. Pease does not require the appellate court to affirm a departure sentence where, as here, the trial court never heard sufficient evidence to justify the departure since, in such a case, there is no “valid reason” for departure. See State v. Licea, 707 So. 2d 1155, 1157 (Fla. 2d DCA 1998).
REVERSED and REMANDED.
STONE, C.J., and TAYLOR, J., concur:
. Had appellant committed hjs offense on or after July 1, 1997, rather than 10 days earlier, on June 20, 1997, his drug dependency would not provide a basis for mitigation. See § 921.0016(4)(d), (5), Fla.' Stat. (1997).
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State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000)…t.” Regardless of which type of treatment the trial judge was considering, the downward- departure was error. A sentence that departs downward from the sentencing guidelines must be supported by competent substantial evidence. See State v. Bostick, 715 So. 2d 298, 299 (Fla. 4th DCA 1998). This record contains no evidence whatsoever related to any mental disorder or physical disability of the Appellee. The only evidence that Barnes needed any kind of treatment is Barnes’ attorney’s representation that Barnes…
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State v. Arvinger, 751 So. 2d 74 (Fla. 5th DCA 1999)…e State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998). Nor is Arvinger’s brief statement that he was sorry for what he did a sufficient basis to depart downward for remorse. See State v. Parker, 733 So. 2d 1074 (Fla. 5th DCA 1999); State v. Bostick, 715 So. 2d 298 (Fla. 4th DCA 1998); Silver; State v. Whiting, 711 So. 2d 1212 (Fla. 2d DCA 1998). Further, the statutory mitigating factor which mentions remorse, subsection (j), requires additional findings that the offense was committed in an unsophisticated man…
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State v. Gonzalo Canovas Turro, 724 So. 2d 1216 (Fla. 3d DCA 1998)…is plea. See State v. Alvarez, 709 So. 2d 194 (Fla. 3d DCA 1998). Our ruling is without prejudice to the trial court to revisit defendant’s medical condition and the issue of downward departure on a more fully developed record. See State v. Bostick, 715 So. 2d 298, 299 (Fla. 4th DCA 1998). Reversed and remanded. . Defendant contends that the State did not make an adequate objection to preserve this issue for appellate review. We conclude that the objection was sufficient. The transcript reflects that the pa…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herrin v. State, 568 So. 2d 920 (Fla. 1990)
- Pease v. State, 712 So. 2d 374 (Fla. 1997)
- State v. Gordon, 645 So. 2d 140 (Fla. 3d DCA 1994)
- State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998)