On August 24, 2012, Florida’s Fifth District Court of Appeal released an en banc opinion that will no doubt be welcomed by criminal defense and criminal appeals lawyers across the State of Florida. In State v. James Robert Owens, No. 5D11-4257, the Court expressly receded from previous decisions which had required a criminal defendant, when moving for a downward departure, to show that the needed treatment was not available in DOC. In so doing, the Court quoted at length a concurring opinion by Judge Warner of the Fourth District Court of Appeal in State v. Hunter, 65 So. 3d 1123, 1125-1126 (Fla. 4th DCA 2011), which was adopted by the Fourth DCA in State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012) (en banc). The Fifth DCA also certified conflict with cases from the First, Second, and Third District Courts of Appeal.
Although this will be a good case to monitor as it goes to the Florida Supreme Court, what should Florida’s criminal defense attorneys do with the latest opinion by the Fifth DCA? Well, if you’re lucky enough to handle cases that are within the jurisdiction of either the Fourth or Fifth DCA, then you can rest easy knowing that you have one less burden to prove in moving for a downward departure. Be sure to cite Owens and Hunter/Chubbuck in your motion for downward departure. If the trial court denies your motion, you will have a good basis for appeal. If your cases are within the jurisdiction of the First, Second, or Third DCA, you should still file a motion for downward departure where warranted. In the motion, you should cite the controlling cases out of your DCA, but you can also cite Owens and Hunter/Chubbuck in support of your position. If the trial court denies your motion, you’ll be in a better position if you decide to appeal.