           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FIFTH DISTRICT

                                                    NOT FINAL UNTIL TIME EXPIRES TO
                                                    FILE MOTION FOR REHEARING AND
                                                    DISPOSITION THEREOF IF FILED


ALEX MUNOZ,

               Appellant,

 v.                                                      Case No. 5D16-1747

STATE OF FLORIDA,

               Appellee.

________________________________/

Opinion filed March 17, 2017

Appeal from the Circuit Court
for Orange County,
Alicia L. Latimore, Judge.

James S. Purdy, Public Defender, and
Noel A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.

PALMER, J.

Alex Munoz (the defendant) appeals his judgment and sentences, entered by the trial

court after a jury found him guilty of aggravated battery with a deadly weapon1 and simple




      1   See § 784.045(1)(a), Fla. Stat. (2016).
battery.2 We reverse the defendant's conviction and sentence for simple battery, vacate

his sentence for aggravated battery, and remand for re-sentencing. We otherwise affirm.

The defendant first argues that his convictions for simple battery and aggravated battery

violate the constitutional prohibition against double jeopardy because both convictions

stem from a single criminal episode and the elements of simple battery are subsumed by

the elements of aggravated battery. The State properly concedes error. See Rosado v.

State, 129 So. 3d 1104, 1107 (Fla. 5th DCA 2013). Accordingly, we reverse the simple

battery conviction and sentence as the lesser offense. See State v. Tuttle, 177 So. 3d

1246, 1253 (Fla. 2015).

       The defendant also challenges his sentence on the aggravated battery conviction,

arguing that the court erred in rejecting his request for a downward departure sentence

pursuant to section 921.0026(2)(d) of the Florida Statutes (2016). This provision

authorizes a trial court to depart downward if “[t]he defendant requires specialized

treatment . . . for a physical disability, and the defendant is amenable to treatment.” Id.

       In denying the defendant’s request for a downward departure sentence, the trial

court concluded that the defendant suffered from a physical disability but stated, “I don’t

see any indication or documentation that would suggest that there would be any more

sophisticated treatment that would not be offered.” The defendant argues that this

statement suggests that the court’s ruling was improperly premised, at least to some

extent, on his failure to produce evidence that the Department of Corrections (DOC) could

not provide the specialized treatment and that such reasoning would violate with the ruling

in State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014).



       2   See § 784.03, Fla. Stat. (2016).

                                              2
      In Chubbuck, our Supreme Court considered “whether subsection 921.0026(2)(d)

requires the defendant to prove that the required specialized treatment he [or she] needs

is unavailable in the DOC.” 141 So. 3d at 1168. The court concluded:

             [T]he plain language of subsection 921.0026(2)(d) does not
             require the defendant to prove that the required specialized
             treatment is unavailable in the DOC. We further find that this
             interpretation does not lead to an unreasonable result or a
             result clearly contrary to legislative intent. Accordingly, a
             defendant who is requesting a downward departure sentence
             pursuant to subsection 921.0026(2)(d) must prove the
             following three elements by a preponderance of the evidence:
             (1) the defendant has a mental disorder (unrelated to
             substance abuse or addiction) or a physical disability; (2)
             which requires specialized treatment; and (3) the defendant is
             amenable to such treatment.

Id. at 1171 (footnote omitted). As such, the defendant bears no burden of proving the

unavailability of specialized treatment in the DOC.

      When the record suggests, but does not establish, that a trial court misapplied the

law when denying a request for a departure sentence, the district court should vacate and

remand for re-sentencing. See Shuler v. State, 947 So. 2d 1259, 1260 (Fla. 5th DCA

2007). Accordingly, the defendant’s sentence for aggravated battery is vacated, and this

matter is remanded for re-sentencing.

      AFFIRMED in part; REVERSED in part; VACATED in part; and REMANDED.



SAWAYA and ORFINGER, JJ., concur.




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