STATE оf Florida, Appellant/Cross-Appellee, v. William Zachary WHITE, Appellee/Cross-Appellant.
Nos. 5D99-1363, 5D99-1615
District Court of Appeal of Florida, Fifth District
May 5, 2000
755 So. 2d 830
ANTOON, C.J.
James B. Gibson, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appellant.
In this consolidated appeal, the State appeals the downward dеparture sentence given William White by the trial court over the State‘s objection (Case No. 99-1363), and Mr. White appeals his convictions, maintaining that thе trial court erred in admitting certain impeachment testimony and in denying his motion for judgment of acquittal (Case No. 99-1615). The trial court gave three reasons for the departure, none of which was valid under the facts of this case. Accordingly, we must vacate Mr. White‘s sentences and remand this matter for re-sentеncing. We find no merit in Mr. White‘s claims of trial error; therefore, we affirm his convictions.
Mr. White lived in a duplex owned by his mother. The other portion of the duplex was occupied by the victims in this case. They came home from work one day to discover their VCR, three shotguns, jewelry, and blank checks missing. There was no sign of forced entry. Mr. White, using the identification of one of the victims, cashed one of the missing checks. Witnesses linked Mr. White to the stolen merchandise.
After heаring the evidence, the jury found Mr. White guilty of the offenses of armed burglary of a dwelling,1 dealing in stolen property, and uttering a forgery. He was additionally adjudicаted guilty of possession of a firearm by a convicted felon and driving with a suspended or revoked license. Rejecting the recommended guidelines sentence of 30 to 50 months’ incarceration, the trial court departed downwards and imposed 35 months’ incarceration, suspended, with credit for 517 days of time served, followed by five years of drug offender probation. Restitution totaling $614 was imposed. The trial court also impliedly declined the State‘s request to sentence Mr. White as a habitual offender. At the sentencing hearing, the trial court announced the reasons for its leniency:
The reason for thе departure and suspended sentence is the need for payment of restitution to the victims outweighs the need for a prison sentence.
Number two, the defendant had a drug problem at the time. The Court finds that based on the evidence, that he had to be under the influence, and the testimony was that he was, аnd that there‘s a need and he‘s amenable to rehabilitation through the programs he‘s been through, the drug offender probation, continue the drug programs, and definitely that the offense was committed in an unsophisticated manner. No question about that.
The State argues, and we agree, that these reаsons are unsupported by the record.
The first reason for departure, that the need for restitution outweighs the need for a prison sentence, can be a valid reason for departure. See
The second reason for departure was that Mr. White had a drug problem, was under the influence of drugs at the time he committed the offenses, and had a neеd for, and was amenable to, rehabilitation. Because the offenses were committed in June 1997,
What prevents this court from upholding this basis for downward departure is the fact that there was no evidence presentеd to the trial court that Mr. White required specialized treatment. See State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000) (holding that downward departure was improper in the absence of evidence thаt the defendant required specialized treatment or that any such treatment could not be provided by the Department of Corrections). But see State v. Spioch, 706 So.2d 32, 36 (Fla. 5th DCA), rev. denied, 718 So.2d 171 (Fla.1998) (rejeсting the state‘s contention that a defendant must produce evidence that the defendant could not be successfully treated in prison; stating that “a lack of available treatment in prison is not required under the statute.“). In State v. Gordon, 645 So.2d 140, 142 (Fla. 3d DCA 1994), rev. denied, 652 So.2d 816 (Fla.1995), the Third District Court explained, “In particular, where, as here, the purpose of thе downward departure from the sentencing guidelines is to allow the defendant to obtain treatment in a drug rehabilitation program, it would seem essential еither that the defendant already be in the program as was true in Herrin [v. State, 568 So.2d 920 (Fla.1990)] or that there be a[n] evaluation by a representative of the program indicating that the defendant will be accepted in the program as a suitable candidate for drug treatment.” No such evidence was presented on bеhalf Mr. White‘s downward departure, and we therefore must find the reason unsupported by the evidence. See
The final reason for the downward departure sentence was that the offenses were committed in an unsophisticated manner. This finding was an apparent attempt to support the departure pursuant to
We vacate Mr. White‘s sentenсes and remand this matter for re-sentencing under the guidelines. On remand, the trial court should address the State‘s habitual felony offender request and make aрpropriate findings supporting its determination on that issue. See King v. State, 681 So.2d 1136 (Fla.1996).
JUDGMENTS AFFIRMED; SENTENCES VACATED; CAUSE REMANDED for RE-SENTENCING.
GRIFFIN and THOMPSON, JJ., concur.