JOSHUA PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the plain language of section 921.0026(2)(d) does not require a defendant to prove the Department of Corrections cannot provide specialized treatment for a downward departure.
Appellant sought a downward departure from sentencing, which the trial court denied, referencing the defendant's failure to call a Department of Corre…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Downward Departure From Sentencing Guidelines cases and more on FLexlaw
Appellant appeals the trial court’s denial of his motion for downward departure under section 921.0026(2)(d), Florida Statutes (2012).1 At the conclusion of appellant’s sentencing hearing, the trial court made several references to appellant not having called a witness from the Department of Corrections to testify. In State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we found that the plain language of section 921.0026(2)(d) does not require a defendant to prove that the Department of Corrections “cannot provide the specialized treatment required” in order for a trial court to grant a downward departure under that subsection. Id. at 921 (quoting State v. Hunter, 65 So.3d 1123, 1125 (Fla. 4th DCA 2011) (Warner, J., concurring specially)). Because appellant’s sentencing occurred before we decided Chubbuck, the trial court did not have the benefit of our decision. Accordingly, we reverse and remand for resentencing. We note the following on remand:
[T]he state should have the opportunity to present evidence as to whether the DOC can provide the required “specialized treatment.” However, if the state presents such evidence ... the trial court is not precluded from granting [appellant’s] request for downward departure. Rather, the state’s evidence is merely an additional factor which the trial court may consider in exercising its discretion as to whether to grant [appellant’s] request for downward departure.
Colletta v. State, — So.3d - (Fla. 4th DCA 2012).
Reversed and remanded for resentenc-ing.
WARNER, GERBER and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Napoles v. State, 162 So. 3d 58 (Fla. 4th DCA 2014)…eparture unless Ñapóles proved that she could not obtain the necessary treatment in prison. Because Chubbuck eliminated this requirement, the issue was meritorious and would have resulted in reversal had it been raised on appeal. See Perez v. State, 107 So. 3d 537 (Fla. 4th DCA 2013). Accordingly, we grant the petition and reverse and remand for resentencing. We note the following on remand: [T]he state should have the opportunity to present evidence as to whether the DOC can provide the required “specializ…
Authorities Cited
- State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012)
- State v. Hunter, 65 So. 3d 1123 (Fla. 4th DCA 2011)