STATE OF FLORIDA, APPELLANT,
v.
ERIK S. OSBORN, APPELLEE
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A downward departure sentence is permissible when the trial court finds, based on a preponderance of the evidence, that the defendant suffers from a mental disorder and is amenable to treatment, even if the statute does not define 'mental disorder'.
The state appealed a downward departure sentence granted after the defendant pleaded guilty to child pornography charges. The trial court relied on a …
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ORFINGER, M., Senior Judge.
The state appeals a downward departure sentence following appellee’s guilty plea to ten counts of sending computer pictures of child pornography over the internet, in violation of sections 827.071(1) and 827.071(3), Florida Statutes. We affirm.
Prior to sentencing, the trial court appointed a licensed psychologist to perform a psychological evaluation of defendant. The report filed with the court indicated that defendant suffered from what the psychologist referred to as Avoidant Personality Disorder and Dysthymic Disorder. Based on the report, and after hearing from other witnesses, the court departed downward from the recommended guidelines sentence.
Section 921.0016(4)(d), Florida Statutes (1995), states that mitigating circum stances under which a departure sentence is reasonably justified include:
(d) The defendant requires specialized treatment for addiction, mental disorder, or physical disability, and the defendant is amenable to treatment.
Here there was evidence before the court from which it could conclude that the defendant suffered from a “mental disorder” for which he required specialized treatment, and that he was amenable to treatment. Although the statute provides no definition of “mental disorder,” it is within the trial court’s discretion, based on a preponderance of the evidence, to determine whether any of the statutory elements for departure exist. State v. Chandler, 668 So. 2d 1087 (Fla. 1st DCA 1996). See also, State v. MacMillan, 671 So. 2d 893 (Fla. 5th DCA 1996) (evidentiary basis required for departure). No abuse of discretion is demonstrated.
AFFIRMED.
THOMPSON and ANTOON, JJ., concur.
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State v. Cummings, 748 So. 2d 388 (Fla. 5th DCA 2000)…ner for which defendant has shown remorse). Finally, the state contends that the psychological evaluations do not propose a specific treatment plan for Barbato. The trial court’s downward departure in Barbato’s case is affirmed; In State v. Osborn, 717 So. 2d 1110 (Fla. 5th DCA 1998), this court acknowledged that the legislature has not defined the term “mental disorder” within the context of section 921.0016(4)(d). This court noted that in the absence of a definition, it is within the trial court’s discretio…
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Kovalsky v. State, 220 So. 3d 1192 (Fla. 4th DCA 2017)…or’s testimony, and thus, there was no competent, substantial evidence to support the court’s denial. In. fact, there is precedent from one of our sister courts regarding this exact disorder which supports. Appellant’s argument. See State v. Osborn, 717 So. 2d 1110, 1110-11 (Fla. 5th DCA 1998) (holding that a trial court did not err in qualifying Avoidant Personality Disorder as a mental disorder under the downward departure statute). Perhaps realizing its mistake, but not acknowledging it, the trial court at…
Authorities Cited
- State v. Lintalliferro Chandler, 668 So. 2d 1087 (Fla. 1st DCA 1996)
- Cummins v. Lake Cnty. Bd. of Cnty. Comm'rs, 671 So. 2d 893 (Fla. 5th DCA 1996)