final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; James W. McCann, Judge; L.T. Case No.
Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
Brian Kovalsky appeals the denial of his motion for downward
departure. He argues the trial court failed to recognize that
he had a valid legal basis meriting consideration of his
departure motion-a qualifying mental illness. For the reasons
explained herein, we reverse the trial court's denial of
Appellant's motion and remand the case to a different
judge for further proceedings.
September 9, 2014, the State of Florida charged Appellant by
information with 187 counts of knowingly possessing child
pornography contrary to section 827.071(5), Florida Statutes.
The State found a total of 187 files on Appellant's
computer, "comprised of both photographs and videos, all
of which showed children . . . in sexual conduct or
sexually-explicit situations." Appellant entered an
open, no contest plea to the charges. He expressly
acknowledged that the maximum possible penalty for his crimes
was 935 years, while the mandatory minimum was 56.66 years.
sentencing, Appellant moved for a downward departure pursuant
to section 921.0026(2)(d), Florida Statutes, based on an
apparent mental disorder-"Avoidant Personality
Disorder." He presented the testimony of a psychologist
who was an expert in forensic and clinical psychology.
Following a previous clinical interview with Appellant
lasting "a couple of hours, " the doctor diagnosed
I diagnosed him with what's called the "avoidant
personality disorder" and this is pretty much as it
sounds, as an individual that has a very low self-esteem,
very insecure, has limited, if not any interaction with . . .
people and they are very, uh, self-critical, very shameful of
their appearance, very sensitive to being criticized by
others and that causes them to avoid social interaction to
avoid any kind of interpersonal relationships other than with
doctor continued by noting that Appellant seemed to have the
disorder since he was eighteen years old. The doctor
concluded the disorder "certainly meets the criteria for
a mental health diagnosis." He also believed Appellant
required specialized treatment, and would be amenable to such
trial judge questioned whether Avoidant Personality Disorder
was a mental disorder. The judge asked: "But is that a
mental disorder or is that just a . . . personality disorder?
. . . I mean, I don't remember him qualifying as a mental
or emotional or . . . psychological or otherwise, it was just
a disorder that he had." The judge later added, "I
listened to Dr. Landrum and I didn't quite categorize
this avoidant personality disorder as one that was mental
illness, a mental disease." In denying Appellant's
motion for downward departure at the sentencing hearing, the
trial court stated, "I do not think that there is a-a
sufficient basis for me to depart from-from the Criminal
Punishment Code Guidelines." The court sentenced
Appellant to the mandatory minimum of 56.66 years in prison,
followed by fifty years of sex offender probation.
the trial court pronounced his sentence, Appellant's
counsel asked the judge, "for the record, just to be
clear, you didn't find according to the testimony from
[Appellant's medical expert witness] on the report that
there was any mental illness that allowed you to downward
depart from the sentencing guidelines?" The judge
responded, saying "[t]hat's correct."
I-I didn't think that-that whatever [the expert]
testified to was a sufficient basis for departing from the
guidelines pursuant to 921.0026(2)(d). . . . I also
didn't hear him say that this treatment that he offered
is-is in anyway specialized, but although he did seem to
think that he may not be able to get the intensity of
treatment that he would like at the Department of
Corrections, but I don't think that qualifies as