STATE OF FLORIDA, APPELLANT,
v.
MICHAEL J. SCHERBER, APPELLEE

Fla. 2d DCA | 2006-01-25
No. 2D05-1947
CANADY, J., and HAYES, HUGH D., Associate Judge, Concur.
918 So. 2d 423 Florida District Court of Appeal, Second District (2006) Positive Treatment
Cited by 18 cases

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Synopsis

The State of Florida appealed downward departure sentences imposed on Michael Scherber for three criminal cases. The appellate court reversed the sentences, finding that Scherber failed to prove by a preponderance of the evidence that the Department of Corrections could not provide the specialized mental health treatment he required.


Holding

Scherber did not meet his burden of proving that the DOC cannot provide the specialized treatment he requires. The expert testimony established that the DOC could provide medication and related treatment, and her vague testimony about lacking knowledge of whether a 'formal plan' existed at the DOC was insufficient to satisfy the statutory requirement.


Headnotes

[1] A defendant seeking a downward departure sentence based on requiring specialized treatment for a mental disorder or physical disability must prove by a preponderance of t…

[2] A defendant's testimony that the Department of Corrections might not be able to provide a specific type of formal treatment plan is insufficient to establish that the Dep…

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Key Quotes

“To receive a sentence pursuant to this section, a defendant must prove that the Department of Corrections (DOC) cannot provide the specialized treatment required.”

Establishes the statutory burden of proof required for downward departure sentences under section 921.0026(2)(d).

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Facts & Procedural History

Scherber entered pleas in three cases: a probation violation for felony driving with suspended/revoked license, a nolo contendere plea to another felo…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

The State of Florida appeals the downward departure sentences imposed on Michael Scherber. We reverse.

Scherber entered pleas in .three cases based on the circuit court’s determination that he qualified for a downward departure sentence. In case number CRC03-18354CFANO, Scherber entered an admission to violating his probation. He was originally placed on probation for felony driving while licensed suspended or revoked. In case number CRC04-18623CFANO, Scherber entered a nolo contendere plea to another charge of felony driving while licensed suspended or revoked. In ease number CRC04r-21868CFANO, Scherber entered a nolo contendere plea to dealing in stolen property. According to Scherber’s sentencing scoresheet, the lowest permissible prison sentence based on the guidelines was 17.1 months in prison and the maximum sentence was twenty-five years in prison.

The trial court sentenced Scher-ber to one year of community control followed by two years of probation in all three cases, concurrent.

The circuit court gave Scherber a sentence below the guidelines based on section 921.0026(2)(d), Florida Statutes (2003), which allows such a sentence when a defendant proves by a preponderance of, the evidence that he or she requires specialized treatment for a mental disorder that is not related to substance abuse or addiction, or for a physical disability, and the defendant is amenable to treatment. See State v. Wheeler, 891 So. 2d.614, 616 (Fla. 2d DCA 2005).

To receive a sentence pursuant to this section, a defendant must prove that the Depart ment of Corrections (DOC) cannot provide the specialized treatment required. Id.; State v. Green, 890 So. 2d 1283, 1286 (Fla. 2d DCA 2005) (holding that the appellee did not present sufficient, competent evidence that the DOC could not provide the specialized treatment required, where her expert testified that he did not know if the DOC could provide appropriate treatment, and he was waiting for a call from a person at DOC to discuss the availability of treatment).

We conclude that Scherber did not establish by a preponderance of the evidence that the DOC cannot provide the treatment that he requires. At the plea hearing, Dr. McClain testified that she met Scherber one time on February 23, 2005, and she reviewed his mental health records. She testified that he suffers from attention deficit disorder and bipolar disorder. Dr. McClain recommended outpatient treatment for Scherber and noted that he voluntarily sought treatment at Directions for Mental Health and was-prescribed medication. She testified that the DOC could provide Scherber with any required medication.

However, she further testified, “[b]ut as far as any formal plan to deal with coping skills, dealing with life head-on, not to my knowledge.” This was the only testimony relating to the availability of treatment at the DOC.1 Because the testimony established that the DOC could provide the specialized treatment Scherber required, the circuit court erred in finding that Scherber was eligible for downward departure sentences.

Accordingly, Seherber’s sentences are reversed. Because Scherber entered his pleas pursuant to the circuit court’s finding that he was eligible for a downward departure sentence, Scherber should be permitted the option to withdraw his pleas on remand. Wheeler, 891 So. 2d at 617.

Sentences reversed and remanded with directions.

CANADY, J., and HAYES, HUGH D., Associate Judge, Concur. . Regarding a “formal plan,” Dr. McClain did not elaborate on whether it was not available at DOC or whether she was just not aware of whether it was offered at DOC.


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Citator

Cited By

  • State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014)
    …uck, 83 So. 3d 918 (Fla. 4th DCA 2012) (en banc). The district court certified that its decision is in direct conflict with the following decisions of the district courts of appeal: State v. Ford, 48 So. 3d 948 (Fla. 3d DCA 2010), State v. Scherber, 918 So. 2d 423 (Fla. 2d DCA 2006), State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005), State v. Wheeler, 891 So. 2d 614 (Fla. 2d DCA 2005), State v. Green (Green I), 890 So. 2d 1283 (Fla. 2d DCA 2005), State v. Mann, 866 So. 2d 179 (Fla. 5th DCA 2004), State v. T…
  • Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014)
    …s not available in the Department of Corrections. We acknowledge that this court, as well as the First and Third District Courts of Appeal, has required such proof. See, e.g., State v. Hall, 981 So. 2d 511, 514 (Fla. 2d DCA 2008); State v. Scherber, 918 So. 2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So. 2d 614, 616 (Fla. 2d DCA 2005); State v. Ford, 48 So. 3d 948, 950 (Fla. 3d DCA 2010); State v. Holmes, 909 So. 2d 526, 528 (Fla. 1st DCA 2005). We also acknowledge that both the Fifth and Fourth…
  • State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012)
    …e evidence, that the Department of Corrections cannot provide the required ‘specialized treatment.’ ” State v. Gatto, 979 So. 2d 1232, 1233 (Fla. 4th DCA 2008); see also, e.g., State v. Ford, 48 So. 3d 948, 950 (Fla. 3d DCA 2010); State v. Scherber, 918 So. 2d 423, 424-25 (Fla. 2d DCA 2006); State v. Holmes, 909 So. 2d 526, 528 (Fla. 1st DCA 2005); State v. Mann, 866 So. 2d 179, 182 (Fla. 5th DCA 2004). Here, the state correctly asserts that Chubbuck offered no evidence that the Department of Corrections cou…
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