State v. Chubbuck

• Citation: 141 So.3d 1163
• Decision Date: 19 June 2014
• Docket Number: No. SC12–657.,SC12–657.
• Parties: STATE of Florida, Petitioner, v. Harry James CHUBBUCK, Respondent.
• Court: United States State Supreme Court of Florida

141 So.3d 1163

STATE of Florida, Petitioner,

v.Harry James CHUBBUCK, Respondent.

No. SC12–657.

Supreme Court of Florida.

June 19, 2014.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; Celia Terenzio, Bureau Chief, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Petitioner.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, FL, for Respondent.

PER CURIAM.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc). The district court certified that its decision is in direct conflict with the following decisions of the district courts of appeal: State v. Ford, 48 So.3d 948 (Fla. 3d DCA 2010), State v. Scherber, 918 So.2d 423 (Fla. 2d DCA 2006), State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005), State v. Wheeler, 891 So.2d 614 (Fla. 2d DCA 2005), State v. Green ( Green I ), 890 So.2d 1283 (Fla. 2d DCA 2005), State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004), State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002), State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000), and State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998). We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const.

This case pertains to subsection 921.0026(2)(d), Florida Statutes (2009), which authorizes a trial court to give a downward departure sentence if it finds that “[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.” § 921.0026(2)(d), Fla. Stat. (2009). The question presented is whether this departure ground requires the defendant to prove that the required specialized treatment is unavailable in the Florida Department of Corrections (DOC). We hold that the plain language of the statute does not include a requirement that the defendant prove unavailability of specialized treatment in the DOC as part of the definition. We therefore approve the Fourth District's decision in Chubbuck.

FACTS

In January 2008, Harry Chubbuck was charged with one count of trafficking in cocaine (28–200 grams) (§ 893.135(1)(b)1.a., Fla. Stat. (2007)), one count of possession of cocaine with intent to sell (§ 893.13(1)(a), Fla. Stat. (2007)), one count of possession of paraphernalia (production) (§ 893.147(1)(a), Fla. Stat. (2007)), and one count of felon in possession of firearm or ammunition (constructive possession) (§ 790.23(1)(a), (c)–(e), Fla. Stat. (2007)). Pursuant to a subsequent plea agreement entered into by Chubbuck and the State, Chubbuck agreed to plead guilty to the charges in exchange for five years' probation and no incarceration.¹ In April 2009, the trial court adjudicated Chubbuck guilty and placed him on probation in accordance with the plea agreement.² The trial court further ordered Chubbuck to abstain from the use of alcohol and illegal drugs and submit to random urinalysis testing during probation.

On July 21, 2010, a violation of probation affidavit was filed against Chubbuck, which alleged that Chubbuck “fail[ed] to live and remain at liberty without violating any law” by possessing cocaine as revealed from his urine sample. Chubbuck then filed with the trial court an “Information for Court,” which outlined his prior military service and his extensive health issues.³ On November 12, 2010, the trial court held Chubbuck's violation of probation hearing. The State informed the trial court that it could either reinstate Chubbuck's probation or sentence him in accordance with the sentencing guidelines, where the bottom of the guidelines totaled 37.65 months. Chubbuck testified at the hearing that the “Information for Court” is true and correct about himself and his conditions. The document was admitted into evidence. Chubbuck acknowledged his prior military service and that he was undergoing treatment for PTSD at the Veterans Affairs (VA) Hospital. Additionally, Chubbuck's fiancée testified that Chubbuck is “very ill” and that she takes him to the VA Hospital “all the time.”

Counsel for Chubbuck told the trial court that Chubbuck is a “very, very ill man,” and asked the court to terminate his probation and sentence him to time served to allow for treatment of his various ailments at the VA Hospital. Chubbuck's counsel explained that Chubbuck “needs [i]nterferon treatment, which works.” Relying on the downward departure ground set forth in subsection 921.0026(2)(d), Chubbuck's counsel requested that the court find that a downward departure is appropriate based on Chubbuck's mental condition and physical disabilities. The State, relying on State v. Betancourt, 40 So.3d 53 (Fla. 5th DCA 2010),⁴ argued that there was no evidence presented that DOC would be ill-equipped to treat Chubbuck.

The trial judge found as follows:

[T]he bottom line here is before the Court stands a man who has served his country and put himself at risk. The documentation is clear that as a result of serving this country, he has significant problems that he's trying to deal with.

The only violation before the Court is that the defendant, in the light most favorable to the State, may have used a controlled substance while on probation. Under no set of circumstances would I send the defendant to prison in this scenario.

...

[T]he defendant is 66 years old. The nature of his problems [is] far beyond the expertise of the [DOC].... There is nothing that the [DOC] will do that in anyway [sic] will address any significant issues the defendant has.

The defendant is a former member of the Sheriff's Office. He has honorably served our country. He clearly has suffered for the rest of his life for that. The question then becomes: given the ... millions of Americans who are actually either in prison or under some type of supervised release, is there anything to be gained by the defendant being placed back on probation other than to say, we put him back on probation, and [have] it sound politically better? In other words, is society better off because a 66–year–old hero, a veteran with significant problems, is now being supervised by the [DOC]?

...

The Court recognizes that it must abide by the law....

I'm going to make this very simple for the [a]ppellate [c]ourt and for the State Attorney's Office.... 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 [DOC]. It's just called ludicrous.

The defendant has spent 97 days in jail because he tested positive for cocaine, even if he used cocaine. I question whether anybody in this courtroom or this world, who went what this defendant went through in Vietnam when people like me sat home in our 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.

The trial court revoked Chubbuck's probation as unsuccessful, and sentenced him to ninety-six days in jail with ninety-six days' credit for time served.

On appeal, the State claimed that “because Chubbuck did not present evidence that the [DOC] 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).” Chubbuck, 83 So.3d at 920. The Fourth District, sitting en banc, held that the plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC. Id. at 921. Consequently, the Fourth District “recede[d] from a line of [its] cases that imposes a requirement on a sentencing statute that goes beyond the plain language of the statute”: State v. Hunter, 65 So.3d 1123 (Fla. 4th DCA 2011),⁵State v. Belluscio, 82 So.3d 910 (Fla. 4th DCA 2011), ⁶State v. Gatto, 979 So.2d 1232 (Fla. 4th DCA 2008), ⁷ and State v. Green ( Green II ), 971 So.2d 146 (Fla. 4th DCA 2007), ⁸ and certified direct conflict with Scherber,⁹Wheeler,¹⁰Green I,¹¹Mann,¹²Tyrrell,¹³Thompson,¹⁴Abrams, Ford,¹⁵ and Holmes.¹⁶Chubbuck, 83 So.3d at 919, 923. The district court adopted Judge Warner's reasoning provided in her special concurrence in Hunter.¹⁷Chubbuck, 83 So.3d at 921. The Fourth District concluded by reversing Chubbuck's sentence and remanding for a new sentencing hearing:

Because the state was not on notice of this court's present view of subsection 921.0026(2)(b) at the time of the sentencing hearing, we reverse the sentence to provide the state another opportunity to present evidence as to whether the [DOC] can provide the required “specialized treatment.” Although 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. We emphasize, however, that if the state presents such evidence at the new sentencing hearing, the trial court is not precluded from granting the defendant's request for a downward departure for the same reasons. 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 the defendant's request for a downward departure.

Id. at 923.¹⁸ Thereafter, the State sought to invoke this Court's...