State v. Chubbuck
2012 Fla. App. LEXIS 3735
| Fla. Dist. Ct. App. | 2012Background
- Chubbuck pleaded guilty to drug offenses and was placed on five years of probation with a no-illegal-drug use condition.
- About a year later, probation was allegedly violated when Chubbuck’s urine tested positive for cocaine.
- At the probation-violation hearing, the State urged revocation and a sentence at least at the bottom of the guidelines; Chubbuck urged a downward departure to time served.
- Chubbuck testified about Vietnam service, PTSD treatment, COPD, a heart/diabetes history, and ongoing VA treatment.
- The trial court revoked probation and sentenced Chubbuck to 96 days in jail, citing his age, health, and non-dangerousness as mitigating factors under 921.0026(2)(d).
- On appeal, the State argued the court lacked competent evidence to depart downward under 921.0026(2)(d) because there was no proof DOC could not provide the required treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 921.0026(2)(d) requires proof that DOC cannot provide treatment | State: must prove unavailability of treatment | Chubbuck: statute allows departure with amenability to treatment | No; no such showing required; remand for new sentencing hearing |
| Whether the record supports a downward departure under 921.0026(2)(d) | State: evidence insufficient without DOC proof | Chubbuck: evidence of illness and treatment suffices | Record insufficient under prior gloss; reversed for new hearing to allow the State to present DOC-treatment evidence |
| Whether the court should recede from prior decisions requiring unavailable-treatment proof | State: no change in law | Chubbuck: precedent misreads statute | Court recedes from Hunter and related decisions; adopts view that explicit proof of unavailability is not required |
Key Cases Cited
- State v. Hunter, 65 So. 3d 1123 (Fla. 4th DCA 2011) (concurrence urging no requirement to prove unavailability of treatment)
- State v. Gatto, 979 So. 2d 1232 (Fla. 4th DCA 2008) (treatment unavailability not required (early gloss))
- State v. Green, 971 So.2d 146 (Fla. 4th DCA 2007) (treatment requirement gloss under 921.0026(2)(d))
- State v. Scherber, 918 So.2d 423 (Fla. 2d DCA 2006) (treatment-availability inquiry discussed)
- State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004) (requires consideration of availability in some districts)
- State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002) (treatment-availability discussion in Fifth District)
- State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000) (treatment-availability discussion in Fifth District)
- State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998) (earlier suggestion that availability affects departure)
- State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998) (noting lack of availability was not required (contrasted))
- Banks v. State, 732 So.2d 1065 (Fla.1999) (step-one framework for assessing downward departure)