State v. Ford, 2010 Fla. App. LEXIS 18312

Defendant charged with burglary and possession of burglary tools; the lowest permissible sentence under guidelines was 48.6 months.
State sought an enhanced penalty under the habitual offender statute; trial court downwardly departed to three years of probation with special conditions.
State appeals the downward departure; issue is whether the departure is legally and factually supported.
Court applies State v. Salgado's two-prong test: (1) valid ground and adequate factual support, (2) whether departure is the best option.
Court holds the first prong requires legal correctness and substantial evidence; the second prong is a discretionary judgment.
Defendant established need for specialized treatment but failed to prove by preponderance that the DOC cannot provide it; psychologist’s report was inconclusive.
Consequently, the downward departure is reversed and remanded with instructions to allow defendant to satisfy his burden.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there was competent evidence that the DOC cannot provide the required specialized treatment	State contends proper burden shown by evidence supports departure.	Rothenberg argues defendant satisfied need and is amenable to treatment.	Reversed for lack of competent evidence that DOC cannot provide treatment.

State v. Salgado, 948 So.2d 12 (Fla. 3d DCA 2006) (two-prong de novo/abuse-of-discretion framework for downward departures)
State v. Gatto, 979 So.2d 1282 (Fla. 4th DCA 2008) (requirement that defendant show DOC cannot provide specialized treatment)
State v. Scherber, 918 So.2d 423 (Fla. 2d DCA 2006) (evidence of treatment unavailability must be shown by more than speculation)
State v. Wheeler, 891 So.2d 614 (Fla. 2d DCA 2005) (reversal where no showings of treatment needs or availability)
State v. Hall, 981 So.2d 511 (Fla. 2d DCA 2008) (no downward departure where DOC treatment availability not shown)