State v. Washington

District Court of Appeal of Florida

State v. Washington

84 So. 3d 1265, 2012 WL 1314217, 2012 Fla. App. LEXIS 6039

CourtDistrict Court of Appeal of Florida

DecidedApril 18, 2012

DocketNo. 4D10-4189

StatusPublished

This text of 84 So. 3d 1265 (State v. Washington) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Washington, 84 So. 3d 1265, 2012 WL 1314217, 2012 Fla. App. LEXIS 6039 (Fla. Ct. App. 2012).

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Opinion

DAMOORGIAN, J.

The State of Florida appeals the trial court’s final order granting Michael Washington’s motion for a downward departure sentence. Washington sought a departure sentence based on, inter alia, his need for adequate mental health treatment. On appeal, the State argues that Washington did not meet his burden to establish that the treatment he required was not available from the Department of Corrections (“DOC”). In our recent opinion in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we receded from our precedent which imposed upon the defendant seeking a departure sentence, the burden to establish by a preponderance of the evidence that treatment was not available from the DOC. See id. at 921. Accordingly, our holding in Chubbuck is disposi-tive of the issue in this appeal.

The record in this case reflects that Washington’s expert testified that the DOC could provide adequate treatment for Washington. Based upon the fact that the trial court was presented with this evidence and still chose to give a departure sentence, leads us to conclude that there is no reason to remand this case in order to give the State another opportunity to present evidence as to whether the DOC can provide the necessary treatment. Cf. id. (reversing and remanding for a new sentencing hearing because “[a]lthough 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”).

Affirmed.

MAY, C.J., and GROSS, J., concur.

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DAMOORGIAN, J.

The State of Florida appeals the trial court’s final order granting Michael Washington’s motion for a downward departure sentence. Washington sought a departure sentence based on, inter alia, his need for adequate mental health treatment. On appeal, the State argues that Washington did not meet his burden to establish that the treatment he required was not available from the Department of Corrections (“DOC”). In our recent opinion in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we receded from our precedent which imposed upon the defendant seeking a departure sentence, the burden to establish by a preponderance of the evidence that treatment was not available from the DOC. See id. at 921. Accordingly, our holding in Chubbuck is disposi-tive of the issue in this appeal.

The record in this case reflects that Washington’s expert testified that the DOC could provide adequate treatment for Washington. Based upon the fact that the trial court was presented with this evidence and still chose to give a departure sentence, leads us to conclude that there is no reason to remand this case in order to give the State another opportunity to present evidence as to whether the DOC can provide the necessary treatment. Cf. id. (reversing and remanding for a new sentencing hearing because “[a]lthough 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”).

Affirmed.

MAY, C.J., and GROSS, J., concur.

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84 So. 3d 1265, 2012 WL 1314217, 2012 Fla. App. LEXIS 6039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-fladistctapp-2012.

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