State v. Owens, 95 So. 3d 1018

Background

Florida appeals Owens's downward departure after a nolo contendere plea to multiple offenses.
Trial court found Owens required specialized treatment for a mental disorder unrelated to substance abuse and amenable to treatment, justifying a departure.
Prior Florida decisions added a requirement that treatment be unavailable in the Department of Corrections (DOC) to permit a downward departure under § 921.0026(2)(d).
This Court adopts Judge Warner's Hunter-based reasoning, receding from the unavailability requirement and any cases applying it.
Court concludes the statute's plain language supports a downward departure based on the need for specialized treatment, without a stated unavailability condition, and certifies conflict with several prior decisions.
Affirmed; conflict certified; the panel recedes from Betancourt, Knox, Mann, Tyrrell, White, and Thompson; notes conflict with Ford, Scherber, Holmes, Wheeler, Green, and Abrams.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unavailability requirement under 921.0026(2)(d)?	State supports continuing the unavailability rule.	Owens argues no unavailability requirement is in the statute.	No unavailability requirement; statute permits departure.
Should the court recede from prior case law mandating unavailability?	State argues existing rule should remain.	Owens supports adoption of Hunter's approach.	Court recedes from those cases and adopts Hunter's reasoning.
Is Owens's downward departure proper under 921.0026(2)(d) after receding from the unavailability rule?	State contends the trial court erred without DOC unavailability proof.	Owens's condition supports a downward departure under the statute.	Yes; Owens properly downward-departed under the statute.

Key Cases Cited

State v. Hunter, 65 So.3d 1123 (Fla. 4th DCA 2011) (Judge Warner's concurrence adopted by the court in Hunter (receding from unavailability requirement))
State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (Adopted en banc following Hunter decision)
Curry v. Lehman, 55 Fla. 847, 47 So. 18, 20 (Fla. 1908) (statutory interpretation—no subtraction or addition to meaning)
State v. Betancourt, 40 So.3d 53 (Fla. 5th DCA 2010) (instruction that treatment must be unavailable in prison (overruled))
State v. Knox, 990 So.2d 665 (Fla. 5th DCA 2008) (unavailability requirement in earlier line of cases)
State v. Gatto, 979 So.2d 1232 (Fla. 4th DCA 2008) (unavailability requirement cited in earlier decisions)
State v. Green, 971 So.2d 146 (Fla. 4th DCA 2007) (unavailability requirement cited in earlier decisions)
State v. Scherber, 918 So.2d 423 (Fla. 2d DCA 2006) (unavailability requirement cited in earlier decisions)
State v. Wheeler, 891 So.2d 614 (Fla. 2d DCA 2005) (unavailability requirement cited in earlier decisions)
State v. Green, 890 So.2d 1283 (Fla. 2d DCA 2005) (unavailability requirement cited in earlier decisions)
State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004) (unavailability requirement cited in earlier decisions)
State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002) (unavailability requirement cited in earlier decisions)
State v. White, 755 So.2d 830 (Fla. 5th DCA 2000) (unavailability requirement cited in earlier decisions)
State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000) (unavailability requirement cited in earlier decisions)
State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998) (origin of the unavailability concept in this context)