final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Gary L. Sweet, Judge; L.T. Case No.
Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Joseph D. Coronato,
Jr., Assistant Attorney General, West Palm Beach, for
challenges her sentence after a no contest plea. She sought a
downward departure based upon her mental disorder, but the
trial court declined to depart. We reverse, because the court
erroneously concluded that her mental condition must be
connected to the criminal behavior in order to constitute a
ground for departure.
pled no contest to one count of engaging in sexual activity
with a minor who was sixteen or seventeen at the time of the
offense. She was a teacher at a college where she met the
victim. He was a high school student in a dual enrollment
program at the college. At sentencing, she sought a downward
departure sentence under section 921.0026(2)(d), Florida
Statutes (2018), which provides that mitigating circumstances
exist where "The defendant requires specialized
treatment for a mental disorder that is unrelated to
substance abuse or addiction . . . and the defendant is
amenable to treatment." Appellant has such a disorder.
Appellant had been the victim of childhood abuse, the details
of which were part of a confidential sentencing report
available to the court. She was continually treated for
current mental health counselor testified at the sentencing
hearing. She was treating appellant for bipolar disorder,
including hypersexual behaviors which were part of the
disorder. Appellant had made progress, and the therapist was
confident that she would continue to make progress if she
continued her path of treatment. The mental health counselor
testified that she believed there is a relationship between
the childhood trauma, appellant's bipolar disorder, and
her recent behaviors. Asked by the court what connection
there was, the therapist explained that the childhood trauma,
combined with the bipolar disorder, impacts appellant's
appellant testified, the court denied the motion for downward
departure. Specifically, the court stated:
There were two possible mitigators. One is the mental health
issue and the other one might have been the -- that the
victim was a willing participant, but I didn't really
hear evidence of that fact. And I'm not convinced
that I see the connection between the mental health and the
conduct. So I don't think there are
grounds to depart.
(emphasis added) The court imposed a sentence of sixty-six
months, the lowest permissible sentence under the Criminal
Punishment Code, and two years of sex offender program. The
court expressed regret at having to impose this sentence.
appellant filed a Florida Rule of Criminal Procedure 3.800(b)
motion to correct sentence in which she argued that the trial
judge had erroneously believed that the mental disorder had
to be related to the criminal behavior. The motion was
denied. She appeals the sentence.
Banks v. State, 732 So.2d 1065, 1067-68 (Fla. 1999),
the court described the two part process the trial court goes
through on a motion for downward departure sentence:
First, the court must determine whether it can
depart, i.e., whether there is a valid legal ground and
adequate factual support for that ground in the case pending
before it (step 1). Legal grounds are set forth in case law
and statute, and facts supporting the ground must be proved
at trial by "a preponderance of the evidence." 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. Competent
substantial evidence is ...