Matthew Dixon v. State of Florida

                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

MATTHEW DIXON,                        NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D12-3371

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed January 2, 2015.

An appeal from the Circuit Court for Leon County.
Mark E. Walker, Judge.

Clyde M. Taylor, Jr., Taylor & Taylor, PA, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General,
Tallahassee, for Appellee.




PER CURIAM.

      Appellant Matthew Dixon appealed his sentence following his entry of an

open no contest plea. We affirmed Appellant’s sentence in conformance with State

v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005), which required Appellant to
present evidence that the Department of Corrections could not accommodate his

necessary, specialized treatment in order to receive a downward departure sentence

under section 921.0026(2)(d), Florida Statutes (2013). See Dixon v. State, 128 So.

3d 972 (Fla. 1st DCA 2013), review dismissed, SC14-196, 2014 WL 1237108 (Fla.

2014). The Florida Supreme Court has since disapproved of Holmes, 1 quashed this

Court’s decision, and remanded the cause.

        Accordingly, we reverse Appellant’s sentence and remand for a new

sentencing hearing in order to give the State an opportunity to present evidence as

to whether DOC can provide the required specialized treatment and for the trial

court to consider whether to render a downward departure sentence. See

Chubbuck, 141 So. 3d at 1168–69 (quoting Banks v. State, 732 So. 2d 1065, 1067–

68 (Fla. 1999)) (reaffirming that the process for departing from the guidelines

requires the trial court to consider: (1) whether it legally can depart; and (2) if

satisfied that it could, whether it should depart). We find no merit in Appellant’s

other arguments, and so affirm in all other respects.

        REVERSED and REMANDED.

WETHERELL, SWANSON, and OSTERHAUS, JJ., CONCUR.




1
    See State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014).
                                          2