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

STATE OF FLORIDA,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-1006

TONI MARIE SAWYER,

      Appellee.

_____________________________/

Opinion filed December 1, 2016.

An appeal from the Circuit Court for Franklin County.
Stewart E. Parsons, Judge.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellee.




BILBREY, J.

      The State challenges the sentence imposed on Toni Marie Sawyer, the

Appellee, following her no contest plea to sale of a controlled substance. Appellee

was sentenced to 48 months, but that sentence was suspended. She was then
placed on community control to be followed by probation. Given her Criminal

Punishment Code (CPC) scoresheet, the lowest permissible sentence was 39

months imprisonment. Thus, the suspended sentence was a downward departure

sentence. See State v. Robinson, 138 So. 3d 1225 (Fla. 1st DCA 2014).

      In its written order, the trial court gave the following reasons for the

departure: (i) Appellee has a history of substance abuse for which she has not

received treatment, although she would benefit from such; (ii) she is a single

mother of three small children to whom she would be more quickly reunited

following successful treatment than she would be if imprisoned; and (iii) both

Appellee and society are better served by Appellee’s commitment to a long-term

residential drug treatment program.

      As the Appellee acknowledges, the need for substance abuse treatment is not

a permissible basis for departure here because Appellee’s CPC score renders her

ineligible for a reduction of sentence for drug treatment. See § 921.0026(2)(m),

Fla. Stat. (2015). Likewise, her familial obligation is not a valid ground for a

downward departure sentence. State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA

2009).

      Nor can the departure sentence be affirmed on the ground that Appellee

requires mental health treatment for battered woman’s syndrome, as suggested on

appeal. Appellee did testify that she has had a history of “abusive relationships.”

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Further, Joanna Johnson, who conducted a substance abuse evaluation, testified

below that Appellee “needs to be seen by a mental health provider” noting that

Appellee “has been a battered woman, she has had experiences with ill-fated

relationships that have left her victimized; and then she victimizes.” The training,

education, and experience of the substance abuse evaluator were not stated in the

record, and the State argued that Ms. Johnson was not qualified to comment on any

issue beyond Appellee’s substance abuse; the trial court agreed.           Without

discounting the seriousness of Appellee’s experience of domestic abuse, the record

on appeal does not establish by a preponderance of evidence a diagnosis of the

clinical condition of battered woman’s syndrome. See § 921.002(3), Fla. Stat.

(2016) (“The level of proof necessary to establish facts that support a departure

from the lowest permissible sentence is a preponderance of the evidence.”); see

also Jackson v. State, 64 So. 3d 90, 92-93 (Fla. 2011). A preponderance of

evidence is defined as evidence “which as a whole shows that the fact sought to be

proved is more probable than not.” Dufour v. State, 69 So. 3d 235, 252 (Fla. 2011)

(quoting State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. 1st DCA 1988)).

      Therefore, the sentence is VACATED, and the cause is REMANDED for

resentencing. On remand, the trial court may again consider imposing a departure

sentence if there are valid grounds therefor. See Jackson.

M.K. THOMAS, J., CONCURS; WOLF, J., CONCURS WITH OPINION.

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WOLF, J., concurring.

      I concur because the law requires me to do so. However, the trial court,

which heard extensive testimony and was present to evaluate the witnesses, made

findings explaining that the interests of society and appellee would be best served

by sentencing appellee to inpatient substance abuse treatment followed by

community control and probation, rather than incarceration:

      1. The testimony the Court received on behalf of the Defendant
      indicated that she has a long history of substance abuse, and that there
      was a high level of substance abuse in the home as she was growing
      up. Until very recently she has never been involved in a substance
      abuse treatment program. She is currently involved in a treatment
      program offered to inmates in the Franklin County Jail, and the
      director of that program indicated that she has actively participated in
      the program, and he believes she is serious about wanting to conquer
      her addictions, and would benefit from further treatment. The
      Defendant is a single parent with three small children, who are
      currently living with her mother. Assuming treatment is successfully
      completed, Defendant would be reunited with her children in a shorter
      period of time allowing her to meet their needs.

      2. The Court believes that the interest of society and the Defendant
      are best served by giving her an opportunity to be treated in a highly
      structured long term, inpatient substance abuse treatment program, to
      be followed by community control and probation, with a continuing
      condition that she avoid any form of substance abuse. If the
      Defendant fails to successfully complete treatment, or violates the
      terms of her probation, she faces a significant period of incarceration,
      under the suspended sentence.

      These findings are supported by competent, substantial evidence. Section

921.0026(2)(m), Florida Statutes, which limits a trial court’s ability to impose a

downward departure sentence even if a defendant who committed a nonviolent
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crime is amenable to drug treatment, is ill-advised. * A trial judge should have the

discretion to listen to the evidence, evaluate the witnesses, and come up with a

reasonable downward departure sentence based upon the circumstances present in

a particular case. The statute unnecessarily ties a trial court’s hands.




*
 Section 921.0026(2)(m), Florida Statutes, allows the trial court to impose a
downward departure sentence if the defendant is amenable to drug treatment.
However, to be eligible for this basis for departure, a defendant must have
committed a nonviolent offense and the total criminal punishment code scoresheet
points must be 60 or fewer.
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