BUSIAS v. STATE (2026)

Charles S. Busias appeals his sentences and specifically the trial court's denial of his motion for a downward departure. He argues the trial court erred by determining he had not established, as a ground for departure, that he has a mental disorder that is unrelated to substance abuse or addiction and that he is amenable to treatment. We agree, and we reverse his sentences.

“A downward departure from the lowest permissible sentence ․ is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2023).

A trial court's decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect of the court's decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent, substantial evidence supports its ruling. Competent, substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight.

Second, where the step one requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.

State v. Chubbuck, 141 So. 3d 1163, 1168–69 (Fla. 2014) (emphasis in original) (quoting Banks v. State, 732 So. 2d 1065, 1067-68 (Fla. 1999)). Only step one is at issue in this appeal, as the trial court did not reach step two.

Here, the defendant sought departure pursuant to the mitigating circumstance in section 921.0026(2)(d), Florida Statutes (2023), so he was required to “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.” See Chubbuck, 141 So. 3d at 1171 (footnote omitted). “Amenability” has been defined as “a reasonable possibility that ․ treatment will be successful.” Id. at 1171 n.22 (alteration in original) (quoting Herrin v. State, 568 So. 2d 920, 922 (Fla. 1990)).

At the sentencing hearing, the trial court stated without elaboration, “Having considered the defense argument for downward departure, the court is not finding that the basis has been established for the downward departure.” This was error. The defense witness, a forensic psychologist, first opined that the defendant has “a psychological disorder,” “long-term Depressive Disorder,” depression, and anxiety. Second, she testified that he needs “specialized treatment” for his mental disorders of depression and anxiety. Third, she testified that the defendant “would be very good in treatment and he's also amenable.” These opinions were not perfunctory, having been the result of not only the psychologist's interview and testing of the defendant, but also her review of the defendant's case and his psychological evaluation by another doctor. While the psychologist also indicated in her report that the defendant has an issue with disordered or compulsive viewing of pornography, she clarified that this was “not an actual addiction,” and she indicated a different treatment for his depression, anxiety, and emotional regulation than for his compulsive pornography use. See Coniglio v. State, 397 So. 3d 60, 65 (Fla. 4th DCA 2024) (“[W]here the defendant demonstrates that he or she suffers from multiple mental health disorders, including substance abuse, and the treatment for substance abuse is different than the treatment for the other disorders, then the trial court can legally downward depart if evidence is offered regarding the treatment and the defendant's amenability to treatment ․”).

The trial court did not indicate that it rejected any portion of the psychologist's testimony or report, and, consequently, there was sufficient evidence to establish a basis for departure. The trial court erred in determining otherwise.

Thus, we reverse the defendant's sentences, and we remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

Per Curiam.

Ciklin, Levine and Shaw, JJ., concur.