Florida Criminal Case Law Update (October 31, 2022 - November 4, 2022) — Jacksonville Criminal Lawyer Blog

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Florida Criminal Law Update (October 31, 2022 – November 4, 2022)

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OVERVIEW – 7 Cases

1 – Florida Supreme Court Cases
0 – First DCA Cases
2 – Second DCA Cases
0 – Third DCA Cases
2 – Fourth DCA Cases
2 – Fifth DCA Cases

Case #1 – Morgan v. State, No. SC20-641 (Fla. Sup. Ct. )(November 3, 2022)

Morgan is an appealability of Rule 3.800 case.
Here, the 2nd DCA certified a question to the Florida Supreme Court certifying conflict.
The question presented was whether an order granting a 3.800(a) motion is a final order subject to reconsideration until a final order imposing a corrected sentence was entered.
Mr. Morgan initially pled no contest to second degree murder for a murder he committed when he was a juvenile.
He was sentenced to life in prison with the possibility of parole after 25 years.
Mr. Morgan filed a 3.800(a) motion claiming his sentence was illegal in light of Miller v. Alabama and Atwell v. State.
Miller held that the Eighth Amendment prohibits a mandatory life sentence without parole for juveniles.
Atwell held that a life sentence under Florida’s existing parole system was akin to a mandatory life sentence and therefore unconstitutional.
Miller and Atwell left a great deal of litigation and statutory changes in their wake.
In Mr. Morgan’s case, the trial court entered an order granting his 3.800(a) motion ruling that his life without the possibility of parole until 25 years sentence was an illegal sentence.
Before Mr. Morgan was resentenced, the Florida Supreme Court issued State v. Michel, which receded from Atwell and held that a life sentence with the possibility of parole after 25 years is not unconstitutional under the Eighth Amendment.
So, the State filed a motion for reconsideration in Mr. Morgan’s case, which was granted, and the trial court denied Mr. Morgan’s 3.800(a) motion, in light of the new Michel case.
So, the issue on appeal was whether the trial court had jurisdiction to reconsider its order granting the 3.800 motion.
At the 2nd DCA, Mr. Morgan argued that the order granting his 3.800 motion was final and that the lower court was without jurisdiction to reconsider it.
The 2nd DCA rejected Mr. Morgan’s argument relying on its own precedent decision in State v. Rudolf and State v. Stewart and on the 3rd District’s case, State v. Huerta and the 4th DCA’s case, State v. Delvalle, all of which held that 3.800(a) proceedings are not final until a resentencing order is entered because judicial labor is still required
But, the 1st DCA, which had since receded from its position, and the 4th DCA both had held that a 3.800(a) order is a final order. Those courts relied on Florida Supreme Court precedent in Taylor v. State holding that a 3.850 order is a final order even before a resentencing when judicial labor is required..
So, here the Florida Supreme Court had to determine whether a Rule. 3.800(a) order fell under the purview of the Taylor holding that 3.850 orders are final, even before resentencing when judicial labor is still required.
In Taylor, the Court relied on §3.850(f)(8)(C), which states that an, “order issued after the evidentiary hearing shall resolve all the claims raised in the motion and shall be considered the final order for purposes of appeal.”
But Rule 3.800 has no similar provision.
And the Court found that 3.850 proceedings are not the same as 3.800(a) proceedings. They are structured differently and operate differently.
Under Rule 3.850, sentences are vacated and a new sentence is imposed in a subsequent, separate hearing.
Under Rule 3.800(a), a resentencing is a continuation of the proceedings. Not a new subsequent and separate hearing.
Mr. Morgan’s sentence was never vacated and left his sentence in place until the trial court took further action.
Therefore it was not a final order and the trial court maintained jurisdiction to reconsider its order.
2nd DCA’s decision approved.
So, if you have a 3.800(a) motion to correct an illegal sentence and it is granted by the trial court, that order can always be reconsidered and denied prior to resentencing.

Case #2 – Bright v. State, No. 2D21-2172 (Fla. 2nd DCA)(November 4, 2022)

Bright is a probation revocation case out of Lee County.
Mr. Bright initially pled guilty to sexual battery in 2007.
After serving his prison term, he was placed on sex offender probation.
In 2018, the trial court found that Mr. Bright repeatedly violated the terms of his electronic monitoring condition, and sentenced him to 31 days in jail, but did not revoke his probation.
In 2021, Mr. Bright’s probation officer filed a violation report alleging several violations. The trial court found that Mr. Bright violated four of those conditions – failing to report a traffic citation, crossing into another county without permission, failing to turn in a driving log for a month, and failing to pay court costs and electronic monitoring payments.
Mr. Bright appealed to the 2nd DCA.
The 2nd first determined whether competent substantial evidence supported a finding of a willful and substantial violation. If so, then the Court determines whether the trial court abused its discretion in revoking the probation.
Here, Mr. Bright’s probation officer and girlfriend testified at the violation hearing and Mr. Bright provided shifting explanations.
Therefore, the 2nd DCA found that three of the conditions were willful, noting that Mr. Bright had been driving, failed to disclose when and where he drove, attempted to go to another county without permission; Mr. Bright is a sex offender prohibited from having contact with the victim and the family of the victim still lives in the area.
However, competent, substantial evidence did not support the violation for failing to pay court costs and electronic monitoring costs.
The trial court set no due date or payment schedule in the order of probation and in fact, waived the cost of probation supervision during the probationary period as long as he was actually paying for counseling, which he was.
And even though the probation office did make a payment plan and he was in arrears, a failure to abide by a payment schedule set out by the probation office is not sufficient to support a violation.
Without a court order setting a payment schedule or time frame, Mr. Bright could not violate that condition of probation.
Interestingly enough, Mr. Bright was required by court order to pay a $2 monthly Training Trust Fund payment, but the State didn’t allege his nonpayment of that fee as a violation, and even if it had, the 2nd DCA stated it “would be hard pressed to consider it a substantial violation, even assuming it was willful.”
So, you may be wondering why this matters if three violations were upheld and one was not?
When some violations are upheld and some are not, the appellate court reverses the order revoking probation and remands for reconsideration, unless the record is clear that the trial court would have revoked based on the upheld violations.
Here, the 2nd DCA did not find that the record was clear that the trial court would have revoked based on the three upheld violations and in fact didn’t revoke for similar violations back in 2018.
So, Mr. Bright gets another chance to convince the trial court not to revoke his probation or maybe to reconsider the sentence.
Case reversed.

Case #3 – Menchillo v. State, No. 2D21-3466 (Fla. 2nd DCA)(November 2, 2022)

Menchillo is a motion to suppress statements case out of Charlotte County.
Mr. Menchillo was driving on a rainy night when he lost control of his vehicle and crashed into a fence.
The fence and Mr. Menchillo’s vehicle were damaged.
Mr. Menchillo called a tow truck, left his vehicle there, left the area and went home.
Officers arrived on the scene of the accident and got Mr. Menchillo’s phone number from the tow truck driver.
The officer called Mr. Menchillo who told the officer that his tire blew out and he hit the fence and then went home.
Mr. Menchillo agreed to meet with officers who arrived at his home.
Mr. Menchillo invited the officers into his living room and spoke to them briefly.
The officers took a 4 minute sworn statement where Mr. Menchillo admitted to each element of leaving the scene of an accident.
Officers did not read Miranda warnings to Mr. Menchillo.
Mr. Menchillo was charged with leaving the scene of an accident with damage to unattended property.
He filed a motion to suppress his statements and at the suppression hearing, he testified that he thought he was under arrest when officers arrived. He believed he was getting a ticket, which in his mind, was pretty much like getting arrested. He also stated that he believed he could leave the scene because nobody got hurt.
The trial court found that Mr. Menchillo was not entitled to Miranda warnings because he was not in custody.
As we know, law enforcement must provide Miranda warnings to a suspect who is subjected to custodial interrogation.
Custodial interrogation is questioning initiated by officers after the person is taken into custody or otherwise deprived of freedom of action in any significant way.
So, a court must first determine whether the person was in custody, and then whether the person was interrogated. If either custody or interrogation is absent, Miranda is not required.
Generally, interrogation occurs when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response.
Here, the 2nd DCA quickly and without analysis held that the officers interrogated Mr. Menchillo.
So, the real issue on appeal was whether Mr. Menchillo was in custody.
A person is in custody if a reasonable person in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.
The Florida Supreme Court approved a four factor test in Ramirez that includes:
- 1) the manner in which police summon the suspect for questioning,
- 2) the purpose, place and manner of the interrogation,
- 3) the extent to which the suspect is confronted with evidence of his or her guilt; and
- 4) whether the suspect is informed that he or she is free to leave the place of questioning.
This is an objective, reasonable person standard. Mr. Menchillo’s subjective belief that he was under arrest is irrelevant. We look to what a reasonable person in his shoes would have believed.
So, addressing each Ramirez factor, the Court first looked to the manner in which the police summoned Mr. Menchillo for questioning.
- The officers called Mr. Menchillo on the phone. He agreed to give a sworn statement. He invited them inside.
- All of these facts favor the State.
How about the second fact; the purpose, place and manner of interrogation.
- Here, the Court again determined that the factor favored the State because Mr. Menchillo simply repeated information at his house that he had given the police over the phone and the encounter was very brief with no confrontational or intimidating questions or restraint on movements in his own house.
- And the Court rejected Mr. Menchillo’s argument that he was apprehensive and therefore the interrogation was custodial.
  - Mr. Menchillo’s subjective state of mind is irrelevant and the Court determined that a reasonable person would not believe that they were not free to leave.
The Court next turned to the third Ramirez factor – the extent to which he was confronted with evidence of his guilt.
- A reasonable person who is confronted with evidence strongly suggesting he is guilty of a crime may very well believe that he is not going to be free to leave.
- Law enforcement is not going to typically allow a person to go free if they have evidence that the person has committed a serious crime.
- But the significance of this factor turns on the strength of the evidence as understood by a reasonable person in the suspects positions as well as the nature of the offense.
- So, if a suspect is told that the police have his DNA on a murder victim’s body, this Ramirez factor will strongly suggest the suspect is in custody.
- Conversely, if a suspect is told that he vaguely matches the description of someone that stole a 50 cent pen, this Ramirez factor will probably not suggest the suspect is in custody.
- Here, Mr. Menchillo had already admitted to the offense over the phone and the only new information that he was provided at his house by law enforcement was that some cows on the property could have escaped because of the damaged fence.
- So, the 2nd DCA found that this Ramirez factor also favored the State.
Finally, the Court addressed the Fourth Ramirez factor – Whether the suspect is informed that he is free to leave.
- A suspect does not have to be told that he or she is free to leave, but a suspect who has been told that they are free to leave is less likely to be determined by the court to be in custody.
- Here, the Court relied on the First DCA’s decision in Noe v. State, where a mother and father were questioned at a police station about their child’s death.
  - The mother was questioned for less than 2 hours and the questions were not especially intimidating according to the 1st DCA, but she was not told that she was free to leave. After about 2 hours, the mother told officers that she had snapped and killed her child.
  - The 1st DCA held that a reasonable person, under those facts, would not have believed that they were in custody.
- Obviously, Mr. Menchillo, facing a much less serious allegation in his own home, as opposed to the police station, and was not told he was free to go about his business, was in a less custodial environment than in the Noe case, so the 2nd DCA found this Ramirez factor also weighed in favor of the State.
So, with all four Ramirez factors favoring the State, the 2nd DCA found that a reasonable person in Mr. Menchillo’s position would not have considered themselves in custody.
Case Affirmed.

Case #4 – J.T.J., a Child, v. State, No. 4D21-2735 (Fla. 4th DCA)(November 2, 2022)

J.T.J. is a juvenile probation revocation case out of Palm Beach County involving judicial notice of school records.
The State filed a petition for violation of probation alleging that J.T.J. had several curfew violations and unexcused absences.
At a two day revocation hearing, the State asked the court to take judicial notice of J.T.J.’s school records.
The State had filed the records, but failed to file a written notice of intent to admit them as is required under the Business Records hearsay exception in §90.803(6)(c).
The trial court took judicial notice that the school records were in the court file, but stated that they were not yet admitted as evidence in the revocation hearing.
The State then called a probation officer to testify to J.T.J.’s unexcused absences.
The probation officer could not recall specific dates when J.T.J. was absent and the State tried to refresh his recollection with the school records.
Defense counsel objected for lack of proper foundation and the trial court sustained the objection.
The State then attempted to admit the records into evidence, but defense counsel objected arguing that they were inadmissible hearsay.
The State argued that the records were admissible under the Business Records exception because they were certified and authenticated and therefore didn’t require a records custodian to lay a predicate for their admission.
Defense Counsel argued that the records were inadmissible because the STate failed to provide the written notice of intent to admit them as is required by the rule.
The trial court sustained the objection.
The State then called another probation officer who testified that she visited the school and J.T.J. was not there on a specific date, but it was a date not alleged in the violation petition.
The State then called J.T.J. who testified that he couldn’t remember if he had unexcused absences. The State refreshed his recollection with the school records and he admitted to unexcused absences in October, but could not specify how many or on what dates.
The State next called a detective who testified that he arrested J.T.J. for a curfew violation but could not recall the specific date.
The State rested and defense counsel moved for judgment of dismissal which was denied by the trial court.
The day after the revocation hearing, the State filed a written notice of intent to admit the school records and the trial court granted the motion and admitted the school records into evidence after the conclusion of the revocation hearing.
The trial court then relied on information in the school records to find that J.T.J. had unexcused absences.
The trial court also found that J.T.J. violated his curfew.
J.T.J. appealed the trial court’s findings.
To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully and substantially violated a condition of his or her probation.
When a VOP petition alleges that a defendant has committed a violation on a specific date, the State must prove that the violation occurred on that specific date as opposed to some undetermined date.
The 4th DCA first addressed the allegations that J.T.J. had unexcused absences from school.
- The State attempted to prove this violation by admitting J.T.J.’s school records.
- However, those records are inadmissible hearsay unless they are admitted under one of the exceptions.
- The State attempted to admit them under §90.803(6)(c)’s business records exception, but that rule specifically requires that the party serve reasonable written notice to the other party and must make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence.
- That wasn’t done here. The State failed to provide any written notice before the evidence was offered, let alone notice “sufficiently in advance” as is required by the rule.
- Yet, the trial court after the hearing had concluded, in the words of the 4th DCA, “inexplicably admitted the records into evidence,” after having properly sustained the objection during the hearing.
- And while otherwise inadmissible hearsay evidence is admissible in a probation revocation proceeding, hearsay alone cannot support a revocation of probation.
- The hearsay evidence must be supported by some non-hearsay evidence.
- But here, the State failed to present any corroborating evidence for the unexcused absences on those particular dates alleged and established in the hearsay school record documents, because none of the witnesses were able to testify to the specific dates that J.T.J. was absent from school.
As to J.T.J.’s curfew violations, the sole evidence was a detective’s testimony that he arrested J.T.J for a curfew violation, but the detective did not testify at the revocation hearing on what date the curfew violation occurred.
And even though the detective did testify to the specific date at an earlier resisting without violence adjudicatory hearing, that evidence cannot be relied on in this separate violation hearing.
Therefore, none of the violations challenged by J.T.J. can stand. However, there was one curfew violation that J.T.J. did not challenge on appeal, but despite that valid violation, the 4th DCA could not determine from the record whether the trial court would have still revoked J.T.J.’s probation on the basis of that one violation, so the Court determined that a remand was appropriate.
Case reversed and remanded.

Case #5 – State v. Darter, No. 4D22-308 (Fla. 4th DCA)(November 2, 2022)

Darter is a child pornography motion to suppress case out of Palm Beach County.
Law enforcement received a cybertip that a “Jeff Darter” uploaded an image of child pornography to the KIK chatting application.
A detective issued subpoenas, determined Mr. Darter’s name and address from the IP address and Comcast records and visited him at his worksite when two attempts to contact him at home failed.
Two detectives identified themselves to Mr. Darter and recorded their conversation.
The detectives issued Miranda warnings and questioned him for 14 minutes.
Mr. Darter was evasive first saying that he did not know what KIK was and eventually wavering back and forth on whether he had a KIK account.
He told detectives that a friend showed him child pornography a long time ago, but he denied using the KIK application to download child pornography.
The detectives asked to search Mr. Darter’s phone and he refused.
So the detectives concluded the interview and asked Mr. Darter’s supervisor for permission to search his work computer and the supervisor agreed.
When the detectives went back to his office, they told Mr. Darter that they were going to search the work computer and that he needed to get up from his desk. Mr. Darter refused.
Mr. Darter’s supervisor demanded that Mr. Darter get up from the desk and he did so.
Mr. Darter then went to a break room that was visible to the detectives.
One of the detectives noticed that Mr. Darter’s demeanor changed from being “oddly calm” during the interview, to shaking and frantically swiping and pressing on his cell phone screen.
The detective believed that he was deleting evidence so the detectives approached him and asked for his cell phone.
Mr. Darter said no and a struggle over the cell phone ensued and the detective ultimately seized the phone and arrested Mr. Darter for battery on a law enforcement officer.
The detectives then obtained a search warrant for the contents of the phone which revealed 174 child pornography files.
Mr. Darter filed a motion to suppress the evidence arguing that his cell phone was illegally seized without probable cause.
The State argued that although there was no probable cause prior to the interview, probable cause developed after the interview and exigent circumstances existed which warranted the seizure.
Mr. Darter responded that the State created the exigent circumstances.
The trial court granted the motion to suppress finding that there was no probable cause and that in order for a seizure to be justified under the exigent circumstances exception, there must be probable cause.
The State appealed to the 5th DCA.
Under the Eleventh Circuit decision in U.S. v. Babcock and the U.S. Supreme Court Decision in Kentucky v. King, a warrantless seizure is allowed when the police can show both probable cause and an applicable warrant exception, like exigent circumstances.
So, you need probable cause and exigent circumstances, not one or the other.
Here, the 5th DCA agreed with the State that probable cause developed after the interview.
Before the interview, the State had information that a person named Jeff Darter had uploaded an image of child porngraphy which was linked to an IP address of a subscriber named Jeff Darter.
During the interview, Mr. Darter wavered on whether he had a KIK account, his answers evolved throughout the interview on whether he had ever seen child pornography, and he had initially denied seeing the child pornography image and then changed his answer to acknowledge the possibility of seeing it.
And after the interview, he initially refused to get up from his desk when told the detectives were going to search his work computer and his demeanor changed from oddly calm to shaking and frantically swiping his cell phone screen.
The 5th DCA held that the facts known to the detective before, during and after the interview provided probable cause that child pornography would be on his phone.
And while there are a lot of reasons why somebody could be swiping on their phone, the 5th DCA found that probable cause does not require certainty, but rather merely a probability.
The Court next turned to exigent circumstances.
Because although probable cause existed, it still requires a warrant unless an exception applies.
The test of whether exigent circumstances exist is an objective one.
One type of exigent circumstance is the imminent destruction of evidence.
The government must show more than a subjective fear of imminent destruction evidence; the fear must be objectively reasonable.
The appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.
The exigent circumstances application is particularly compelling when it comes to electronic files that can easily and quickly be destroyed.
Here, the 5th DCA found that exigent circumstances existed.
- Mr. Darter was confronted by detectives, warned that the detectives were going to have to talk to his wife, was ordered from his desk while detective searched it, was shaking and frantically swiping and pressing his cell phone screen, and appeared nervous.
- Under these facts, the 5th DCA found that exigent circumstances existed.
- The Court also rejected Mr. Darter’s argument that the detectives created the exigent circumstances because neither detective engaged or threatened to engage in conduct that violates the Fourth Amendment.
- Therefore, the warrantless seizure of Mr. Darter’s cell phone was lawful because law enforcement had probable cause that the phone contained evidence of a crime and there were exigent circumstances created by the threat that he could be deleting that evidence.
- Case reversed and remanded.

Case #6 – Scott v. State, No. 5D22-478 (Fla. 5th DCA)(November 4, 2022)

Scott is a 3.850 ineffective assistance of counsel case out of Orange County.
Mr. Scott was convicted by a jury of First degree murder and attempted 2nd degree murder and was sentenced to life with a 25 year minimum mandatory term on the first degree murder and to a consecutive 30 years on the attempted murder count.
His direct appeal was denied and he subsequently filed this 3.850 post-conviction relief motion which was summarily denied by the trial court.
On appeal, the 5th DCA addressed two of Mr. Scott’s arguments.
First, Mr. Scott argued that his trial counsel was ineffective for failing to object to his attempted second degree murder count being reclassified, which resulted in a 30 year sentence, when attempted second degree murder has a maximum of 15 years when not reclassified.
- In the indictment, the State failed to allege that Mr. Scott “did personally carry, display, use, threaten to use, or attempt to use a firearm.”
- However, the jury was provided a special jury instruction that asked them to determine whether he did personally carry, display, use, threaten to use, or attempt to use a firearm.
- The jury answered that question yes, and based on that finding, the trial court reclassified his attempted second degree murder from a second degree felony with a maximum of 15 years, up to a first degree felony with a maximum of 30 years.
- In order to reclassify an offense based on a firearm, the State must allege the grounds for the enhancement in the charging document and the jury must make factual findings regarding those grounds.
- Here the jury made factual findings, but the State failed to allege the grounds in the indictment.
- A jury’s finding is not sufficient to support reclassification in the absence of the proper language in the Information or Indictment.
- The record does not refute Mr. Scott’s allegation that his trial counsel was ineffective for failing to object at the trial level, therefore, the case must be remanded for the post-conviction court to address the issue on the merits or to attach documents to the record that address it.
The Court next turned to Mr. Scott’s argument that his trial counsel was ineffective for misadvising him about his right to testify and not preparing him to testify.
- Mr. Scott argued that he was not present during the shooting and he was the only one who could testify to his alibi defense, but he was advised by his trial counsel not to testify because his criminal history would be presented.
- Mr. Scott understood that to mean that the substance of his prior convictions would be presented to the jury and apparently he didn’t want that.
- He argued that had he known that very limited information would come in about his prior record, he would have testified and the outcome would have been different because he would have told the jury that he was home while the crimes were being committed.
- In order to waive the right to testify, a defendant must make a voluntary and intelligent waiver.
- When a defendant alleges that his attorney advised him that prior convictions would come up, and the defendant misunderstands that to mean that the jury would hear about the substance of those offenses, the claim fails the first prong of Strickland, which is that the attorney was ineffective.
- Because the allegation here turns on the defendant’s understanding of what he was told and not on any deficient performance on the part of counsel, this claim fails.
- Because Mr. Scott did not allege that his attorney misadvised him about the prior convictions coming in, he fails the first prong of Strickland.
- So, Mr. Scott was successful in getting a hearing on one of the two claims.
- Case affirmed in part, reversed in part, and remanded.

Case #7 – State v. Sawyer, No. 5D21-2422 (Fla. 5th DCA)(November 4, 2022)

Sawyer is a downward departure case out of Citrus County.
Mr. Sawyer was set to go to trial on a trafficking in cocaine, possession of cannabis with intent to sell and possession of paraphernalia case.
Just before trial, Mr. Sawyer’s attorney alerted the Court that Mr. Sawyer was in complete renal failure and he required dialysis three times per week.
Mr. Sawyer provided a letter from a dialysis provider and medical records supporting his claim.
The trial court offered Mr. Sawyer 5 years probation if he wanted to plead guilty.
The State objected arguing that the lowest permissible sentence under the guidelines was 90.71 months and trafficking contains a 3 year minimum mandatory sentence.
The trial court imposed a downward departure and sentenced Mr. Sawyer to 5 years probation.
The State appealed to the 5th DCA.
A trial court may impose a downward departure from the lowest possible sentence only if there are circumstances or factors to support the departure and may not impose a downward departure in the absence of those circumstances or factors as laid out in §921.0026.
In determining whether a trial court erred in applying a downward departure, the appellate court will first determine whether the trial court applied the correct rule of law and whether that application is supported by competent, substantial evidence, and second determine whether the trial court abused its discretion.
Under §921.0026(2)(d), A defendant is required to prove three things: that he has a physical disability, which requires specialized treatment and that he is amenable to that treatment.
- Amenability is defined as a reasonable possibility that treatment will be successful.
- Chapter 921 doesn’t define specialized treatment, but testimony from a medical professional is sufficient to establish the specialized treatment element.
Here, the Court found that Mr. Sawyer failed to prove that his physical disability required specialized treatment and that he is amenable to that treatment.
- Specifically, the Court found his evidence insufficient because the letter from the dialysis provider was unsworn and not from a doctor and the medical records failed to address the specialized nature of the treatment or whether Mr. Sawyer is amenable to that treatment.
- Also, a defendant’s testimony and an attorney’s representations are both insufficient to support a downward departure.
Because the evidence submitted by Mr. Sawyer was insufficient as to specialized treatment and amenability as required under §921.0026(2)(d), the case must be remanded for a new sentencing hearing where Mr. Sawyer should be allowed to withdraw his plea, should he wish to do so.
And, in addition, the Court addressed in a footnote the elephant in the room. The trafficking count had a 3 year mandatory minimum sentence.
- A trial judge cannot impose a downward departure sentence that is below a mandatory minimum.
  - So, it looks like Mr. Sawyer will go from a probationary sentence to a minimum of 3 years in prison.
  - Case reversed.