State v. Chubbuck

• Decision Date: 07 March 2012
• Docket Number: No. 4D10–5014.,4D10–5014.
• Citation: 83 So.3d 918
• Parties: STATE of Florida, Appellant, v. Harry James CHUBBUCK, Appellee.
• Court: Florida District Court of Appeals

83 So.3d 918

STATE of Florida, Appellant,

v.Harry James CHUBBUCK, Appellee.

No. 4D10–5014.

District Court of Appeal of Florida, Fourth District.

March 7, 2012.

Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, for appellee.

EN BANC

PER CURIAM.

The state appeals a final order revoking Harry Chubbuck's probation and granting a downward departure sentence. We sua sponte consider this case en banc to recede from a line of our cases that imposes a requirement on a sentencing statute that goes beyond the plain language of the statute.

Pursuant to a plea bargain involving drug related offenses, Chubbuck was adjudicated guilty and placed on five years of probation with a condition that required him to abstain from the consumption of illegal drugs.

About a year later, the probation officer filed an affidavit alleging that Chubbuck had violated his probation, in that Chubbuck's urine had tested positive for cocaine.

At the beginning of the hearing on the probation violation, the parties staked out their positions on what the trial court should do if Chubbuck admitted the violation. The state argued that the court should revoke probation and either reinstate it or sentence Chubbuck to prison; the state represented that the bottom of the sentencing guidelines was 37.65 months. Chubbuck argued that the court should revoke probation and sentence him to time served, which was 97 or 98 days at that point, because he was “a very, very ill man” who should “get treated for all of the various things that ail him.”

Chubbuck testified that he was in the United States Army between 1961 and 1971, where he served in Vietnam as a surgical technician on air ambulances during the Tet Offensive. During his time in the service, he was awarded a Bronze Star and a Silver Star, as well as 22 air medals, one air medal for each half hour of combat flight time. Chubbuck said that he was shot down four times in one day trying to retrieve a radio operator. He was undergoing treatment for Post–Traumatic Stress Disorder at a Veterans Administration hospital, which was helping his condition. Chubbuck also suffered from chronic obstructive pulmonary disease, “some sort of lower left ventricle problem,” and diabetes.

Chubbuck's fiancée testified that Chubbuck was a law-abiding person who was “very ill”; she took him to the “VA all the time.” Chubbuck introduced a multi-page statement summarizing his military service and health conditions; under oath, Chubbuck attested to the veracity of the information in the statement.

Pointing to the testimony, Chubbuck asked the court to grant a downward departure, terminate probation, and sentence him to time served. He relied on subsection 921.0026(2)(d), Florida Statutes (2009), which allows a trial court to depart from the “lowest permissible sentence” if “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” In response, the state argued that there was no evidence to show that the Department of Corrections could not treat Chubbuck's illnesses, so subsection (2)(d) could not be used to justify a downward departure sentence.

The trial judge made the following findings:

This defendant does not belong in prison, and it's absurd to have a 66–year–old man, who put his life on the line for our country, and has the problems he now has under the supervision of the Department of Corrections ...

The defendant has spent 97 days in jail because he tested positive for cocaine[.] [E]ven if he used cocaine[,] I question whether anybody in this courtroom or this world, who went through in Vietnam when people like me sat home in our own living rooms and watched the war on television, would have handled this any better than the defendant.

The defendant is not accused of committing any new crimes. He is 66 years old. He has so many problems now dealing with mental health and physical problems. The common sense says enough is enough.

....

And the Court respects the State's right to appeal. I just hope that there comes a time when justice is not based solely on formulas and mathematical calculations. This is an unusual case, and I believe justice is best served by treating the time spent in jail as significant punishment for the violation, and the defendant needs to move on with his life.

So, the Court accepts his admission of violating probation, revokes probation.

....

And sentence[s] him to [96 ¹] days in jail with credit for [96] days time served.

On appeal, the state argues that because Chubbuck did not present evidence that the Department of Corrections cannot provide the required specialized treatment, there was no competent, substantial evidence to support the trial court's decision to impose a downward departure sentence under subsection 921.0026(2)(d). Thus, the state challenges the legal ability of the sentencing judge to depart downward, step one of a two-step process identified by the Supreme Court in Banks v. State, 732 So.2d 1065, 1067–68 (Fla.1999). Under step one,

[t]he court must determine whether it can depart, whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). 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 of the court's decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight.

Id. at 1067.

Under Florida's sentencing statutes, “[a] downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2009). Subsection 921.0026(1) continues by indicating that subsection, 921.0026(2) provides a non-exclusive list of mitigating factors. Id. (“Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).”). Although the trial court did not cite to a specific statutory section or use the term “mitigating factor,” both the state and Chubbuck invoked subsection 921.0026(2)(d), and the court's findings on Chubbuck's health suggest that subsection as the ground for the court's departure.

Subsection 921.0026(2)(d) provides that a trial court may depart from the lowest permissible sentence if “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” This court and the other districts have supplemented the plain language of the statute with the further requirement that, “[i]f a departure is to be permitted on such ground, the defendant must also establish, by a preponderance of the 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 could not provide Chubbuck the required treatment for his mental and physical disorders.

However, the plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing. We are persuaded by the concurring opinion of Judge Warner in State v. Hunter, 65 So.3d 1123, 1125–26 (Fla. 4th DCA 2011), that we should recede from those of our cases that have added gloss to the statute. We adopt the reasoning in Judge Warner's concurring opinion as the opinion of the court:

I agree that this case should be affirmed, but I write separately to question whether the statutory factor of need of specialized treatment requires the defendant to prove that the treatment he needs is not available in the prison system. Because the statute does not make this a requirement, I would conclude that it is not part of the defendant's burden to prove this element in order for the trial court to determine that it can depart from the lowest permissible sentence under the Criminal Punishment Code.

Section 921.0026 provides mitigating circumstances “under which a departure from the lowest permissible sentence is reasonably justified....” These include: “(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required. See State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); State v. Green, 971 So.2d 146, 148 (Fla. 4th DCA 2007); 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. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).

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