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Kovalsky v. State

Florida Court of Appeals, Fourth District

May 31, 2017

BRIAN KOVALSKY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; James W. McCann, Judge; L.T. Case No. 562014CF002451A.

          Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

          Forst, J.

         Appellant 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.

         Background

         On 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.

         During 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 Appellant.

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 family.

         The 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 treatment.

         The 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.

         After 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 specialized ...

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