State v. Scherber, 2D05-1947.
| Decision Date | 25 January 2006 |
| Docket Number | No. 2D05-1947.,2D05-1947. |
| Citation | 918 So.2d 423 |
| Parties | STATE of Florida, Appellant, v. Michael J. SCHERBER, Appellee. |
| Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
The State of Florida appeals the downward departure sentences imposed on Michael Scherber. We reverse.
Scherber entered pleas in three cases based on the circuit court's determination that he qualified for a downward departure sentence. In case number CRC03-18354CFANO, Scherber entered an admission to violating his probation. He was originally placed on probation for felony driving while licensed suspended or revoked. In case number CRC04-18623CFANO, Scherber entered a nolo contendere plea to another charge of felony driving while licensed suspended or revoked. In case number CRC04-21868CFANO, Scherber entered a nolo contendere plea to dealing in stolen property. According to Scherber's sentencing scoresheet, the lowest permissible prison sentence based on the guidelines was 17.1 months in prison and the maximum sentence was twenty-five years in prison.
The trial court sentenced Scherber to one year of community control followed by two years of probation in all three cases, concurrent. The circuit court gave Scherber a sentence below the guidelines based on section 921.0026(2)(d), Florida Statutes (2003), which allows such a sentence when a defendant proves by a preponderance of the evidence that he or she requires specialized treatment for a mental disorder that is not related to substance abuse or addiction, or for a physical disability, and the defendant is amenable to treatment. See State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005). To receive a sentence pursuant to this section, a defendant must prove that the Department of Corrections (DOC) cannot provide the specialized treatment required. Id.; State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005) ().
We conclude that Scherber did not establish by a preponderance of the evidence that the DOC cannot provide the treatment that he requires. At the plea hearing, Dr. McClain testified that she met Scherber one time on February 23, 2005, and she...
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State v. Owens
...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); St......
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State v. Chubbuck
...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, t......
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State v. Chubbuck
...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 ......
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State v. Hunter
...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); St......