State v. Green, No. 2D03-5589 to 2D03-5600.
| Decision Date | 21 January 2005 |
| Docket Number | No. 2D03-5589 to 2D03-5600. |
| Citation | 890 So.2d 1283 |
| Parties | STATE of Florida, Appellant, v. Tracey Lynette GREEN, Doc # 508772, Appellee. |
| Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee.
The State challenges the downward departure sentence imposed on Tracey Lynette Green after she entered an open plea of guilty to twenty-five counts in twelve cases. We reverse.
Ms. Green entered an open plea of guilty to twenty-five counts of felony petit theft, third-degree grand theft, fraudulent use of a credit card, fraudulent use of personal information, forgery, uttering a forged instrument, giving a false name to law enforcement, burglary, and robbery. Ms. Green understood that she entered her plea with no agreement as to her sentence, but she hoped to receive a downward departure under section 921.0026, Florida Statutes (2001-03), because she required specialized treatment for both mental disorders and a physical disability.
At the sentencing hearing, to establish facts that would support a departure under section 921.0026, Ms. Green presented testimony from Dr. Michael Gamache, who performed a mental examination, a diagnostic clinical interview, and a detailed psychosocial history of Ms. Green. Dr. Gamache related Ms. Green's tragic history of physical and emotional abuse. Dr. Gamache testified that Ms. Green currently had an addiction to cocaine, major depressive and posttraumatic stress disorders, and Hepatitis C. Ms. Green's Hepatitis C would require either medication or a liver transplant, and her depressive disorder would require "pharmacological treatment from a psychiatrist." Dr. Gamache also testified that Ms. Green was currently receiving treatment for her mental disorders and was amenable to continued treatment.
When the State asked Dr. Gamache about the ability of the Department of Corrections (DOC) to provide treatment to Ms. Green, Dr. Gamache testified that he did not know whether the DOC could provide appropriate treatment. He was "waiting for a phone call from a person at D.O.C. who [was] in charge of all the treatment programs." Dr. Gamache said that the DOC's website used to have information about treatment for "dual diagnosis" (combined treatment for both substance abuse and mental health problems), but the website no longer had this information. Ms. Green presented no other evidence that the DOC could not provide the treatment.
The court initially advised Ms. Green's attorney that he had the burden of showing that the DOC could not provide appropriate treatment, stating:
There was some discussion about whether the court should continue the case, to which the State objected. Then, after a short break, the judge announced that he had spoken to his DOC "representative," who happened to be in the courtroom. The judge's conversation with the unidentified DOC representative is not on the record, but this person apparently told the judge that the DOC was no longer equipped to provide appropriate treatment for Ms. Green because it had eliminated all Tier 1 and Tier 2 programs (dual diagnosis programs) and discontinued most programs dealing with drug abuse. The court then asked the State whether it wanted a continuance to prove that the type of treatment Ms. Green required was not a Tier 1 or Tier 2 program. The State did not agree to a continuance and argued that Ms. Green had not met her burden of proof.
Thereafter, despite a guidelines score that required a minimum sentence of 108.75 months' imprisonment (9.06 years), the trial court sentenced Ms. Green to fifteen years' imprisonment suspended after six years and followed by two years' community control and four years' drug offender probation and other shorter concurrent prison terms. The court's noted reason for a downward departure was "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," language that tracks the language of section 921.0026(2)(d).
"A trial court's decision whether to depart from the guidelines is a two-part process." Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The trial court must first determine whether it can depart — whether the defendant has met the burden of establishing sufficient factual support for a valid legal ground. "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." Id. at 1068. The trial court must then decide whether it should depart — "a judgment call within the sound discretion of the court." Id.
The trial court here determined that Ms. Green established sufficient factual support for a departure under section 921.0026(2)(d), which permits a downward departure sentence when the defendant presents evidence that he or she requires specialized treatment for either a mental disorder unrelated to substance abuse or addiction or a physical disability and is amenable to treatment. State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004). There must also be evidence that the DOC cannot provide the specialized treatment required. Id.; State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002). The defendant has the burden of proof to establish the facts that support a downward departure by a preponderance of the evidence. State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000) (citing Banks, 732 So.2d 1065).
Through Dr. Gamache's testimony, Ms. Green established that she had major depressive...
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