IN THE SUPREME COURT OF FLORIDA GEORGE GREEN, Petitioner/Appellant, vs. F.S.Ct. CASE NO. 4 TH DCA CASE NO. 4D05-2009 STATE OF FLORIDA, 4D05-2247 Respondent/Appellee. PETITIONER S BRIEF ON DISCRETIONARY JURISDICTION CAREY HAUGHWOUT Public Defender 15 th Judicial Circuit MICHAEL ANTINORI Assistant Public Defender Florida Bar No. 567744 Criminal Justice Building 421 3 RD Street/6 TH Floor West Palm Beach, Florida 33401 (561 355-7600 appeals@pd15.state.fl.us Attorney for George Green
TABLE OF CONTENTS CONTENTS PAGE Table of Contents.................................................... i Authorities Cited.................................................... ii Preliminary Statement................................................. 1 Statement of the Case................................................. 2 Summary of the Argument............................................. 3 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE DIRECTLY AND EXPRESSLY CONFLICTS WITH DECISIONS OF ANOTHER COURT OF APPEALS ON THE ISSUE OF WHETHER A DEFENDANT MUST PROVE THAT SPECIALIZED TREATMENT IS NOT AVAILIBLE IN PRISON.................................. 4 Conclusion........................................................ 6 Certificate of Service................................................ 6 Certificate of Font Size...............................................7 i
CASES AUTHORITIES CITED PAGE(S State v. Green, 32 Fla. L. Weekly D2877 (Dec. 5 2007.................... 2 State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998...................... 2, 5 FLORIDA STATUTES Section 921.002(f, Florida Statutes (2005.............................. 4 ii
PRELIMINARY STATEMENT Petitioner as the Appellant in the Fourth District Court of Appeal and the defendant in the lower tribunal. Respondent, the state of Florida, was the Respondent and the prosecution, respectively. In the brief, the parties will be referred to as they appear before this Court. 1
STATEMENT OF THE CASE Petitioner was convicted by jury of aggravated battery with a deadly weapon. The trial court granted a downward departure sentence, on grounds that he needed specialized treatment for physical disabilities, to 10 years probation. The Fourth District Court reversed the downward departure, on grounds that Green did not prove that the Department of Corrections could not provide the treatment that Greene needed for his disabilities. State v. Green, 4D05-2009 & 4D05-2247 (Dec. 5, 2007. The Fourth District s decision in this case is in direct conflict with State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998 in which the Fifth District held that a lack of available treatment in prison is not required under the statute. This petition for jurisdiction follows so that the Court may resolve the conflict in the Districts. 2
SUMMARY OF THE ARGUMENT The decision of the Fourth District Court of Appeal in the instant case directly and expressly conflicts with decisions of another district court of appeal on the issue of whether a defendant, in order to qualify for a downward departure, must prove that treatment for the condition upon which the departure is based is not available in prison. 3
ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE DIRECTLY AND EXPRESSLY CONFLICTS WITH DECISIONS OF ANOTHER COURT OF APPEALS ON THE ISSUE OF WHETHER A DEFENDANT MUST PROVE THAT SPECIALIZED TREATMENT IS NOT AVAILIBLE IN PRISON. In the instant case, the Fourth District reversed the trial court s granting of a downward departure. The trial court relied upon the sentencing statute, Section 921.002(f, Florida Statutes (2005, that permits a sentencing court to grant a downward departure where it has been shown by a preponderance of the evidence that the circumstances justify a reduced sentence. The applicable mitigating circumstance is: the defendant requires specialized treatment for a mental disability that is unrelated to substance abuse or addiction or a physical disability and the defendant is amenable to treatment. Here, at the sentencing hearing, the defendant proved both mental and physical disabilities with the testimony of treating physicians, and that he was amenable to treatment, and based on that testimony the court granted the downward departure. Nowhere in the statute listing mitigating circumstances does it say that the defendant must also prove that the DOC cannot provide the treatment. Nonetheless, several Districts have created such a requirement, and the Fourth Districts joins those Courts, with its decision in this case, by reversing the downward departure, because 4
Green did not (and could not conceivably be expected to prove that DOC could not provide the treatment he needed. This creates a direct conflict with State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998, in which the Fifth District held: a lack of available treatment in prison is not required under the statute. This Court should accept jurisdiction in this matter to resolve the conflict in the districts over this issue. 5
CONCLUSION Petitioner respectfully requests this Honorable Court to accept jurisdiction and to review this argument on the merits. Respectfully submitted, CAREY HAUGHWOUT Public Defender 15 th Judicial Circuit of Florida MICHAEL ANTINORI Assistant Public Defender Florida Bar No. 567744 421 3 RD Street/6 TH Floor West Palm Beach, Florida 33401 (561 355-7600 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of Petitioner s Brief On Discretionary Jurisdiction has been furnished to: HEIDE BETTENDORF, Assistant Attorney General, Office of the Attorney General, Ninth Floor, 1515 North Flagler Drive, West Palm Beach, Florida 33401-3432, by courier this day of December, 2007. Counsel for Petitioner 6
CERTIFICATE OF FONT SIZE I HEREBY CERTIFY that Petitioner s Brief On Discretionary Jurisdiction has been prepared with 14 point Times New Roman type, in compliance with a Fla. R. App. P. 9.210(a(2, this day of December, 2007. MICHAEL ANTINORI Assistant Public Defender 7
IN THE SUPREME COURT OF FLORIDA GEORGE GREEN, Petitioner/Appellant, vs. F.S.Ct. CASE NO. 4 TH DCA CASE NO. 4D07-2009 STATE OF FLORIDA, 4D07-2247 Respondent/Appellee. PETITIONER S BRIEF ON DISCRETIONARY JURISDICTION APPENDIX State v. Green, 32 Fla. L. Weekly D2877 (Dec. 5 2007
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the Appendix to Petitioner s Brief On Discretionary Jurisdiction has been furnished to: HEIDE BETTENDORF, Assistant Attorney General, Office of the Attorney General, Ninth Floor, 1515 North Flagler Drive, West Palm Beach, Florida 33401-3432, by courier this day of December, 2007. Counsel for Petitioner