State Of Fla. v. Betancourt

• Decision Date: 02 July 2010
• Docket Number: No. 5D09-3463.,5D09-3463.
• Citation: 40 So.3d 53
• Parties: STATE of Florida, Appellant,v.Manuel BETANCOURT, Appellee.
• Court: Florida District Court of Appeals

40 So.3d 53

STATE of Florida, Appellant,v.Manuel BETANCOURT, Appellee.

No. 5D09-3463.

District Court of Appeal of Florida Fifth District.

July 2, 2010.

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Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellee.

MONACO, C.J.

This appeal by the State of Florida seeks reversal of a downward departure sentence imposed on the appellee, Manuel Betancourt, after his plea of no contest to the charge of traveling to meet a minor for an unlawful sexual act (Count 1), and four counts of solicitation of a minor via a computer. Because the basis for departure, a need for specialized medical treatment, was not supported by substantial, competent evidence, we reverse.

The written plea agreement entered into by Mr. Betancourt did not contain a sentence recommendation, but instead was an “open plea.” At the sentencing hearing the State filed a “Sentencing Memorandum” noting that Mr. Betancourt's scoresheet indicated 105 months as the lowest permissible prison sentence, and that the State's recommendation was a sentence of 10 years of imprisonment, followed by 5 years of sex offender probation. The memorandum also posited that no legal basis existed for a downward departure since the admitted crime was not an isolated incident committed in an unsophisticated manner for which the appellee had shown remorse.

At the sentencing hearing, defense counsel asked the court to depart downwardly on grounds that the crime was, in fact, an “isolated incident” and because Mr. Betancourt purportedly suffered from “physical ailments.” Defense counsel argued that with all of appellee's physical ailments the Department of Corrections could not provide the level of medical care that he needed. Mr. Betancourt then testified that he made some mistakes and regretted them and he reported seeing a medical provider about once a week for COPD, ulcers and vision problems. The appellee further testified to taking six or seven medications, and claimed to leave the house infrequently driving only to the local supermarket, drugstore and to doctors which were all located close to his home. After testimony was presented by both sides regarding the incidents that led to the charges levied against Mr. Betancourt, the State pointed out that the crimes pled to were repetitive and sophisticated, and again recommended a sentence of 10 years in state prison. If the court did not choose to impose that sentence, however, the State asked the court to impose the scoresheet minimum of 105 months imprisonment.

The trial court agreed with the State that no downward departure was appropriate on the basis that the offenses were isolated incidents. Nonetheless, the court felt there was “some sufficient evidence that [defendant] requires specialized treatment.”

The Court: All right. Here's what we'll do. Before the court is what appears to be a 60 year old gentleman, even for that age somewhat emaciated, underweight. I do have a letter furnished to the court from the defense regarding alleged gastric abdominal pain, COPD, chronic hepatitis C, GERD, low back pain, major depression.

The low back pain and major depression doesn't score a lot of points with the court, quite honestly, as any kind of specialized treatment. But, obviously, we have a gentleman here who has some serious medical conditions.

So based upon 921.0026[ (2)(d) ], requiring specialized medical care, I would choose to downward depart. I realize of course that's over the State's objection and is subject to appeal. But I think there is not a lot, but there is some sufficient evidence that he requires specialized treatment.

So I will adjudicate you guilty to the counts for which he pled. I would sentence him to 15 years sex offender probation under Count 1. Now, I don't know, quite honestly, if he can make 15 years of sex offender probation. But that's what he'll have to do if he wishes to stay out of prison.

Counts 2, 3, 4 and 5, the solicitation counts, we would adjudicate him guilty on those and sentence him to time served on each count. I believe it was 3 days before he was bonded out on the special bond because of his condition.

The State timely appealed.

The State contends that the trial court's basis for departure, a need for specialized medical treatment, was not supported by substantial, competent evidence. While treatment was in fact being provided to Mr. Betancourt, the State argues that there was no indication that it was specialized in any way. It was also not entirely clear, according to the State, what treatment was being provided, and whether the Department of Corrections was incapable of providing that care.

The Florida Supreme Court in Banks v. State, 732 So.2d 1065, 1067 (Fla.1999), set out the process for departing from the guidelines.

A trial court's decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step one). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect

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