STATE OF FLORIDA

v.

MARCUS ANTHONY SAWYER

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED STATE OF FLORIDA,

Appellant,

v. Case No. 5D21-2422 LT Case No. 2020-CF-000402-A MARCUS ANTHONY SAWYER, Appellee. ________________________________/ Opinion filed November 4, 2022 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge. Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant. J. Michael Blackstone, of J. Michael Blackstone, P.A., Crystal River, for Appellee. WALLIS, J.

The State appeals the downward departure sentence imposed after Appellee entered a nolo contendere plea to trafficking in cocaine, possession of cannabis with intent to sell, manufacture or deliver, and possession of paraphernalia. We reverse because competent, substantial evidence does not support the trial court's decision to impose the downward departure sentence.

Immediately before trial was to begin in this case, defense counsel informed the court that Appellee was in "complete renal failure," which necessitated his receiving dialysis three times per week. At that time, defense counsel provided the court with a letter from Appellee's dialysis provider and various medical records purporting to confirm Appellee's medical condition. Notably, the medical documentation was neither signed by Appellee’s treating physicians nor provided via sworn testimony. Thereafter, over the State's objection, the trial court offered five years of probation in exchange for a guilty plea, citing to Appellee's renal failure as justification. Appellee accepted the plea offer and the trial court adjudicated Appellee guilty, imposing a downward departure sentence of five years of drug offender probation instead of the lowest permissible sentence of 90.71 months in prison with a three-year minimum mandatory penalty for the drug trafficking charge.

A trial court may impose a downward departure from the lowest possible sentence only if there are circumstances or factors to support the departure; a trial court may not impose a downward departure in the absence of such circumstances or factors. §§ 921.0024(2), 921.0026(1), Fla. Stat. (2021). The onus is on the defendant to establish that a valid reason for a departure exists. See, e.g., State v. Kahl, 333 So. 3d 809, 811–12 (Fla. 1st DCA 2022).

Determining whether a downward departure sentence was properly imposed presents a mixed question of law and fact. State v. Diaz, 290 So. 3d 611, 613 (Fla. 2d DCA 2020). In considering whether to uphold a departure sentence, we must apply a two-pronged analysis. Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). First, we must determine whether the trial court applied the correct rule of law and whether such application is supported by competent, substantial evidence. Id. Second, if the downward departure is supported by competent, substantial evidence, we must "decide whether the trial court [abused its discretion] in determining that the downward departure sentence was the best sentencing option for the defendant." State v. Johnson, 224 So. 3d 877, 879 (Fla. 2d DCA 2017) (alteration in original). This is a determination which requires us to consider the totality of the circumstances. Id.

In this case, competent, substantial evidence does not support the trial court's finding regarding Appellant's medical condition. In order to establish that a downward departure sentence was warranted pursuant to section 921.0026(2)(d), Appellee was required to prove the following three elements: (1) that he has a physical disability which (2) requires specialized treatment, and (3) that he is amenable to that treatment.¹ See State v. Chubbuck, 141 So. 3d 1163, 1171 (Fla. 2014).

Amenability has been defined as "a reasonable possibility that . . . treatment will be successful." Id. at 1171 n.22 (quoting Herrin v. State, 568 So. 2d 920, 922 (Fla. 1990)). Chapter 921, Florida Statutes, does not define "specialized treatment," but testimony from a medical professional is sufficient to establish this element. Id. at 1169; see, e.g., Williams v. State, 286 So. 3d 892, 896–98 (Fla. 2d DCA 2019) (holding that an experienced psychologist's testimony, if found to be credible, is competent, substantial evidence).