State v. Davis

• Decision Date: 05 February 2014
• Docket Number: No. 3D12–1853.,3D12–1853.
• Citation: 133 So.3d 1101
• Parties: The STATE of Florida, Appellant, v. Dexter DAVIS, Appellee.
• Court: Florida District Court of Appeals

133 So.3d 1101

The STATE of Florida, Appellant,

v.Dexter DAVIS, Appellee.

No. 3D12–1853.

District Court of Appeal of Florida, Third District.

Feb. 5, 2014.

Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.

Before SALTER, EMAS and LOGUE, JJ.

EMAS, J.

Dexter Davis was charged with four felonies. The case proceeded to trial, and the jury found Davis guilty as charged of attempted first-degree murder, burglary and two counts of child abuse.¹ Davis' criminal punishment code scoresheet reflected 383.325 months (31.94 years) as a minimum prison sentence, and life imprisonment as the maximum sentence. At sentencing, and over the State's objection, the trial court imposed a downward departure sentence on Davis.

The State appeals the downward departure sentence. Davis cross-appeals the judgments of conviction. We affirm without further discussion the judgments of conviction for the four felony counts. For the reasons that follow, however, we reverse the sentences imposed and remand for a new sentencing proceeding.

The relevant facts are as follows:

Following the return of the verdict, Davis was mistakenly released from jail on October 17, 2011. Upon being released, Davis went to a nearby hospital and sought treatment for mental illness. Davis was returned to custody three days later, and the court appointed two doctors to evaluate Davis and determine his competency to proceed. Each doctor submitted a written report, one finding Davis competent and the other finding Davis incompetent. The court appointed a third doctor, who evaluated Davis and submitted a report finding Davis incompetent. At a subsequent hearing, the State and defense stipulated to the three doctors' reports,²and the court found Davis was incompetent to proceed and met the criteria for commitment. SeeFla. R. Crim. P. 3.212(c).³ The court committed Davis to the Department of Children and Families for treatment to restore his competency.

Thereafter, on April 17, 2012, the Department of Children and Families reported to the court that Davis had been restored to competency, but the report strongly emphasized that “maintenance of [Davis'] psychiatric stability and competence was dependent on his remaining compliant with the current medication regimen.”

On April 27, 2012, the court reappointed two of the three doctors to examine Davis. Both doctors submitted written reports finding Davis competent to proceed. The State and defense again stipulated to the written reports, and the court found Davis competent to proceed to sentencing.

The court held a sentencing hearing on July 6, 2012. At that time, the defense requested ⁴ that the court depart below the minimum guidelines sentence of 31.94 years by imposing a lengthy term of imprisonment followed by a lengthy term of probation. The defense argued that the statutory basis for the downward departure was section 921.0026(2)(d), Florida Statutes (2009), which provides that a downward departure may be granted 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.” The defense relied on the reports prepared by the doctors who performed the competency evaluations of Davis.

The State, however, objected to the reports as hearsay and objected to the use of these reports at sentencing. Although the State had previously stipulated to the admission and use of these reports, that stipulation was for the limited purpose of determining Davis' competency to proceed. The State argued that it had not stipulated to the use of the reports for any other purpose and that the information contained in the reports was hearsay and inadmissible for sentencing purposes. The State suggested that if the defense sought to rely upon the information and opinions contained in these reports to support a downward departure, the doctors should be brought to court where they could testify and be subject to cross examination on this issue. Finally, the State argued the conclusions contained in the reports were “suspect” as they addressed manifestations of mental illness which arose only after Davis was found guilty.

Defense counsel argued the doctors' reports established Davis' need for specialized treatment—specifically, residential treatment following a lengthy term of imprisonment. Defense counsel offered to subpoena the doctors to testify at the sentencing hearing, but the trial court rejected this offer, noting that courts frequently rely on such doctors' reports and the State had previously stipulated to their admission.

The court found the defense established that Davis needed specialized treatment for his mental health conditions and was amenable to such treatment. The court departed downward from the minimum sentence of 31.94 years imprisonment and imposed the following sentences:

• Attempted first-degree murder (Count One): 25 years' imprisonment to be followed by 10 years' probation with a special condition of mental health evaluation and appropriate treatment as necessary;

• Burglary (Count Two): 25 years' imprisonment to be followed by 10 years' probation with a special condition of mental health evaluation and appropriate treatment as necessary, sentence to run concurrent with Count One;

• Child Abuse (Count Three): Five years' imprisonment, sentence to run concurrent with the sentences in Counts One and Two;

• Child Abuse (Count Four): Five years' imprisonment, sentence to run concurrent with the sentences in Counts One, Two and Three.

ANALYSIS:

To determine the appropriateness of a downward departure, a two-step process must be followed:

First, the trial court must determine whether there is a valid legal ground for a downward departure and whether there is adequate factual support for the ground for departure. Second, if there is a valid basis for the trial court to permissibly depart, it must determine whether departure is the best sentencing option for the defendant in the pending case. In other words, the first prong is whether the trial court can legally depart and the second prong is whether the trial court should depart. The trial court's determination regarding the first prong is a mixed question of law and fact, which will be sustained on review if the trial court applied the correct rule of law and there is competent substantial evidence to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion.

State v. Salgado, 948 So.2d 12, 15 (Fla. 3d DCA 2006).

Section 921.002(1)(f), Florida Statutes (2009) provides:

Departures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish the facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.

Section 921.0026(2)(d) further provides that mitigating circumstances include those in which “[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.”

Here, the State contends that the court improperly relied upon inadmissible hearsay—the doctors' reports—as the basisto depart downward from the minimum guidelines sentence. The defense contends, however, that the doctor's reports were not inadmissible hearsay because they had been stipulated to by the State on a prior occasion. We need not reach the more general issue of the extent to which hearsay ⁵ may be admissible at a sentencing proceeding, though we do acknowledge the law in this area is not altogether clear.⁶

The precise issue in this case, however, is governed by the express language of Florida Rule of Criminal Procedure 3.211, which provides in pertinent part:

Rule 3.211. Competence to Proceed: Scope of Examination and Report

....

(d) Limited Use of Competency Evidence.

(1) The information contained in any motion by the defendant for determination of competency to proceed or in any report of experts filed under this rule insofar as the report relates solely to the issues of competency to proceed and commitment, and any information elicited during a hearing on competency to proceed or commitment held pursuant to this rule, shall be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant.

(2) The defendant waives this provision by using the report, or portions thereof, in any proceeding for any other purpose, in which case disclosure and use of the report, or any portion thereof, shall be governed by applicable rules of evidence and rules of criminal procedure. If a part of the report is used by the defendant, the state may request the production of any other portion of that report that, in fairness, ought to be considered.

(Emphasis added).

The rule makes clear that the doctors' reports, and the information contained therein, “shall be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant.” By its terms, the rule does not permit the use of such a report for any other purpose. Therefore, the trial court erred in its determination that, by having previously stipulated to the contents of these reports for purposes of a competency determination, the State was precluded from objecting to the admission of these reports in support of a downward departure. Although the State did not specifically cite to this portion of the rule, it did properly preserve its objection and noted correctly that its prior “stipulation” was...