126 So. 3d 1090
Fla. Dist. Ct. App.2012Background
- Colletta pled guilty to 30 counts of possession of child pornography and received 117.45 months in DOC.
- Defense introduced extensive evidence of long-standing mental illness and urged a downward departure under § 921.0026(2)(d).
- Trial court found mental illness but denied downward departure, stating no evidence that specialized treatment was unavailable in prison.
- The trial judge indicated she believed Gatto prevented any downward departure due to availability of treatment in DOC.
- On appeal, this court later receded from Gatto in Chubbuck, holding burden to prove unavailability of treatment is not required by § 921.0026(2)(d).
- This court reversed and remanded for resentencing to allow consideration of downward departure with evidence from both sides.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gatto bars downward departure in light of Chubbuck | Colletta argues Gatto is no longer controlling after Chubbuck. | State argues Gatto governs and prevents downward departure if treatment exists in DOC. | Remanded for resentencing; Gatto overruled by Chubbuck. |
| Whether the trial court could consider a downward departure without proof of unavailability of treatment | Colletta need not prove unavailability under Chubbuck. | State would require showing lack of available treatment in DOC. | Court must allow downward departure; burden framework updated by Chubbuck. |
| Whether remand is proper to reassess downward departure | Remand appropriate to permit new evidence and discretion. | Remand unnecessarily expands discretion without new evidence. | Remanded for new sentencing hearing to consider downward departure. |
Key Cases Cited
- State v. Gatto, 979 So.2d 1232 (Fla. 4th DCA 2008) (downward departure unavailable when treatment exists in DOC; burden on defendant)
- State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (overruled Gatto's treatment-unavailability requirement; clarifies § 921.0026(2)(d))
- Goldwire v. State, 73 So.3d 844 (Fla. 4th DCA 2011) (remanding for resentencing when trial court misperceived discretion)
- Washington v. State, 82 So.3d 828 (Fla. 4th DCA 2011) (remanding for resentencing when court believed it could not reinstate probation)