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.
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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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