Background

• Chubbuck was charged in January 2008 with trafficking in cocaine, possession with intent to sell cocaine, possession of paraphernalia, and felon in possession of a firearm; he pled guilty to the charges in a plea agreement for five years’ probation and no incarceration.
• In April 2009, the trial court adjudicated him guilty and placed him on probation, with conditions including abstaining from alcohol and drugs and submitting to random urinalysis.
• On July 21, 2010, a violation of probation affidavit was filed alleging cocaine possession based on a urine test; Chubbuck submitted a detailed information for court outlining health issues and military service.
• Chubbuck’s health problems included PTSD and other serious conditions treated at the VA Hospital; counsel sought a downward departure under subsection 921.0026(2)(d) for specialized treatment, arguing DOC could not address his needs.
• The Fourth District (en banc) reversed the trial court’s sentencing, holding that the statute does not require proving unavailability of specialized treatment at DOC and remanded for a new hearing to allow evidence on DOC capabilities.
• The Florida Supreme Court affirmed the Fourth District’s view, holding that a defendant need only prove three elements by a preponderance of the evidence: (1) a mental disorder or physical disability; (2) that requires specialized treatment; and (3) amenability to such treatment; the court disapproved lower courts requiring unavailability in DOC.

Issues

Key Cases Cited

• Abrams, 706 So.2d 903 (Florida Second District Court of Appeal 1998) (downward departure for specialized treatment regardless of DOC unavailability)
• Hunter, 65 So.3d 1125 (Florida Fourth District Court of Appeal 2011) (special concurrence arguing no unavailability requirement)
• Green I, 890 So.2d 1283 (Florida Second District Court of Appeal 2005) (defendant bears burden to show DOC cannot provide specialized treatment)
• Green II, 971 So.2d 146 (Florida Fourth District Court of Appeal 2007) (requires showing DOC cannot provide specialized treatment; reversed in Green II)
• Gatto, 979 So.2d 1233 (Florida Fourth District Court of Appeal 2008) (establishing the need for specialized treatment not shown by DOC availability)
• Holmes, 909 So.2d 526 (Florida First District Court of Appeal 2005) (no evidence DOC could provide necessary treatment)
• Mann, 866 So.2d 179 (Florida Fifth District Court of Appeal 2004) (requires that specialized treatment not be available at DOC)
• Tyrrell, 807 So.2d 122 (Florida Fifth District Court of Appeal 2002) (no evidence DOC could provide specialized treatment)
• Thompson, 754 So.2d 126 (Florida Fifth District Court of Appeal 2000) (no evidence of DOC availability of specialized treatment)
• Ford, 48 So.3d 948 (Florida Third District Court of Appeal 2010) (rejects unavailability requirement)
• Scherber, 918 So.2d 423 (Florida Second District Court of Appeal 2006) (conflicts over unavailability requirement)
• Wheeler, 891 So.2d 614 (Florida Second District Court of Appeal 2005) (requires showing unavailable specialized treatment)
• Owens, 95 So.3d 1018 (Florida Fifth District Court of Appeal 2012) (en banc; rejects unavailability requirement)