               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


FREDERICK MITCHELL,                          )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No. 2D12-572
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed July 30, 2014.

Appeal from the Circuit Court for Polk
County; Mark H. Hofstad and Glenn T.
Shelby, Judges.

Howard L. Dimmig, II, Public Defender, and
John C. Fisher, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs Cline,
Assistant Attorney General, Tampa, for
Appellee.


CRENSHAW, Judge.


             Frederick Mitchell was convicted of aggravated assault with a deadly

weapon and false imprisonment and sentenced to concurrent sentences of nineteen

months' prison. We affirm the convictions without comment. Because Mitchell could
not produce evidence of the Department of Correction's (DOC) inability to treat his

physical condition, his request for a downward departure pursuant to section

921.0026(2)(d), Florida Statutes (2012), was denied. This was error, and we reverse

and remand for resentencing.

              In order to receive a downward departure sentence in cases in which "the

defendant requires specialized treatment for . . . a physical disability," Florida caselaw

had required a defendant to establish that he "required specialized treatment [which is]

unavailable in the DOC." State v. Chubbuck, 39 Fla. L. Weekly S437, S437 (Fla. June

19, 2014) (citing § 921.0026). However, the supreme court has now held, as relevant

here, that a defendant need only establish "the following three elements by a

preponderance of the evidence: (1) the defendant has . . . a physical disability; (2) which

requires specialized treatment; and (3) the defendant is amenable to such treatment."

Id. at S439 (footnote omitted). "Evidence which demonstrates that the DOC can so

provide [specialized treatment] is one factor for the trial court's consideration in deciding

whether to give a downward departure sentence." Id. In this case, the circuit court

ruled that it lacked a legal basis to downward depart solely because of Mitchell's failure

to establish that DOC could not provide him with the treatment he needs. But this, we

now know, is not the inquiry. Rather, Mitchell must merely prove, by a preponderance

of the evidence, that he has a physical disability (which has not been disputed), that he

needs specialized treatment (which is also undisputed), and that he is amenable to that

treatment. If he does so, the court can legally entertain Mitchell's downward departure

motion. In so doing, it is free to consider, as one factor, whether DOC can provide the

necessary treatment. Mitchell's failure to do so is not dispositive and, of course, the




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State may also provide evidence on this point. Accordingly, upon remand, Mitchell is

entitled to a new sentencing hearing in light of Chubbuck and consistent with this

opinion.

             Convictions affirmed, sentence reversed and remanded.

VILLANTI, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.




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