STATE OF FLORIDA, APPELLANT,
v.
MICHAEL WASHINGTON, APPELLEE
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Florida's appeal of a downward departure sentence is affirmed because, under the recent en banc decision in State v. Chubbuck, the defendant no longer bears the burden of proving that adequate mental health treatment is unavailable from the Department of Corrections.
A trial court's downward departure sentence based on inadequate mental health treatment availability is affirmed when the defendant's expert testified that the DOC could provide adequate treatment, as the burden of proving treatment unavailability no longer rests on the defendant following Chubbuck.
[1] Following State v. …
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Join FLexlaw to unlock all legal intelligenceMichael Washington sought a downward departure sentence based on his need for adequate mental health treatment. Washington's expert testified that the…
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The State of Florida appeals the trial court’s final order granting Michael Washington’s motion for a downward departure sentence. Washington sought a departure sentence based on, inter alia, his need for adequate mental health treatment. On appeal, the State argues that Washington did not meet his burden to establish that the treatment he required was not available from the Department of Corrections (“DOC”). In our recent opinion in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we receded from our precedent which imposed upon the defendant seeking a departure sentence, the burden to establish by a preponderance of the evidence that treatment was not available from the DOC. See id. at 921. Accordingly, our holding in Chubbuck is disposi-tive of the issue in this appeal.
The record in this case reflects that Washington’s expert testified that the DOC could provide adequate treatment for Washington. Based upon the fact that the trial court was presented with this evidence and still chose to give a departure sentence, leads us to conclude that there is no reason to remand this case in order to give the State another opportunity to present evidence as to whether the DOC can provide the necessary treatment. Cf. id. (reversing and remanding for a new sentencing hearing because “[a]lthough the state had the opportunity to present such evidence at the sentencing hearing, we recognize the possibility that the state did not present such evidence given this court’s view of the law at that time”).
Affirmed.
MAY, C.J., and GROSS, J., concur.