PER CURIAM.
This case is before the Court for review of the decision of the Fourth District Court of Appeal in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc). The district court certified that its decision is in direct conflict with the following decisions of the district courts of appeal: State v. Ford, 48 So.3d 948 (Fla. 3d DCA 2010), State v. Scherber, 918 So.2d 423 (Fla. 2d DCA 2006), State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005), State v. Wheeler, 891 So.2d 614 (Fla. 2d DCA 2005), State v. Green (Green I), 890 So.2d 1283 (Fla. 2d DCA 2005), State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004), State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002), State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000), and State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
This case pertains to subsection 921.0026(2)(d), Florida Statutes (2009), which authorizes a trial court to give a downward departure sentence if it finds that "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." § 921.0026(2)(d), Fla. Stat. (2009). The question presented is whether this departure ground requires the defendant to prove that the required specialized treatment is unavailable in the Florida Department of Corrections (DOC). We hold that the plain language of the statute does not include a requirement that the defendant prove unavailability of specialized treatment in the DOC as part of the definition. We therefore approve the Fourth District's decision in Chubbuck.
In January 2008, Harry Chubbuck was charged with one count of trafficking in cocaine (28-200 grams) (§ 893.135(1)(b)1.a., Fla. Stat. (2007)), one count of possession of cocaine with intent to sell (§ 893.13(1)(a), Fla. Stat. (2007)), one count of possession of paraphernalia (production) (§ 893.147(1)(a), Fla. Stat. (2007)), and one count of felon in possession of firearm or ammunition (constructive possession) (§ 790.23(1)(a), (c)-(e), Fla. Stat. (2007)). Pursuant to a subsequent plea agreement entered into by Chubbuck and the State, Chubbuck agreed to plead guilty to the charges in exchange for five years' probation and no incarceration.
On July 21, 2010, a violation of probation affidavit was filed against Chubbuck, which alleged that Chubbuck "fail[ed] to live and remain at liberty without violating
Counsel for Chubbuck told the trial court that Chubbuck is a "very, very ill man," and asked the court to terminate his probation and sentence him to time served to allow for treatment of his various ailments at the VA Hospital. Chubbuck's counsel explained that Chubbuck "needs [i]nterferon treatment, which works." Relying on the downward departure ground set forth in subsection 921.0026(2)(d), Chubbuck's counsel requested that the court find that a downward departure is appropriate based on Chubbuck's mental condition and physical disabilities. The State, relying on State v. Betancourt, 40 So.3d 53 (Fla. 5th DCA 2010),
The trial judge found as follows:
The trial court revoked Chubbuck's probation as unsuccessful, and sentenced him to ninety-six days in jail with ninety-six days' credit for time served.
On appeal, the State claimed that "because Chubbuck did not present evidence that the [DOC] cannot provide the required specialized treatment, there was no competent, substantial evidence to support the trial court's decision to impose a downward departure sentence under subsection 921.0026(2)(d)." Chubbuck, 83 So.3d at 920. The Fourth District, sitting en banc, held that the 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. Id. at 921. Consequently, the Fourth District "recede[d] from a line of [its] cases that imposes a requirement on a sentencing statute that goes beyond the plain language of the statute": State v. Hunter, 65 So.3d 1123 (Fla. 4th DCA 2011),
Id. at 923.
The question before us is whether subsection 921.0026(2)(d) requires the defendant to prove that the required specialized treatment he needs is unavailable in the DOC. As the issue presented is one of statutory interpretation, the standard of review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).
A trial court may impose a downward departure below the lowest permissible sentence if it finds, by a preponderance of the evidence, circumstances or factors that reasonably justify the downward departure. §§ 921.0026(1), 921.002(1)(f), Fla. Stat. (2009).
Id. at 1067-68 (footnotes omitted).
Section 921.0026(2) sets out a non-exclusive list of mitigating circumstances under which a downward departure sentence is reasonably justified for non-capital felonies committed on or after October 1, 1998. See § 921.0026(2)(a)-(m), Fla. Stat. Under paragraph (2)(d), the mitigating circumstance at issue, a trial court may depart from the lowest permissible sentence if the defendant requires "specialized treatment" for a mental disorder (unrelated to substance abuse or addiction) or for a physical disability, and the defendant is amenable to treatment. § 921.0026(2)(d), Fla. Stat.; Ch. 97-194, § 8, Laws of Fla.
Chapter 921 does not define "specialized treatment." As observed by Judge Warner, the requirement that the defendant must prove that the specialized treatment is unavailable in the DOC "appears to have had its origins in Abrams." Hunter, 65 So.3d at 1125 (Warner, J., concurring specially). In Abrams, the Second District noted that "[a] defendant's need for specialized treatment for physical disability and amenability to treatment is a valid reason for departure." 706 So.2d at 904. The district court in Abrams reversed the defendant's downward departure sentence because "[t]here is no evidence in the record... that Mr. Abrams requires specialized treatment for HIV that cannot be provided through the [DOC]." Id. (emphasis added).
The Second District in Abrams did not cite to any authority which stood for the proposition that there must be record evidence establishing that specialized treatment could not be provided by the DOC. There was no reference to any statutory provision in the opinion; the district court simply cited to the Sentencing Guidelines Scoresheet in Florida Rule of Criminal Procedure 3.990. Id. Abrams was decided in February 1998, which was prior to the effective date of subsection 921.0026(2)(d). Presumably, the downward departure ground in Abrams involved subsection 921.0016(4)(d), Florida Statutes (1994), which became effective in January 1994 and provided for a downward departure if the defendant required treatment of a specialized nature for addiction, a mental disorder, or a physical disability and the defendant was amenable to treatment. § 921.0016(4)(d), Fla. Stat.; Ch. 93-406, § 13. Subsection 921.0016(4)(d) was
Since the Abrams decision, each of our district courts of appeal have concluded that the defendant's required specialized treatment must be unavailable in the DOC in order for subsection 921.0026(2)(d) to apply. See, e.g., Holmes, 909 So.2d at 528; State v. Hall, 981 So.2d 511, 514 (Fla. 2d DCA 2008); State v. Massingill, 77 So.3d 677, 680 (Fla. 3d DCA 2011); Gatto, 979 So.2d at 1233; State v. Knox, 990 So.2d 665, 668 (Fla. 5th DCA 2008), rev. denied, 68 So.3d 234 (Fla.2011). However, like the Fourth District's decision in Chubbuck, the Fifth District, sitting en banc, recently held that there is no such requirement. State v. Owens, 95 So.3d 1018, 1019 (Fla. 5th DCA 2012) (en banc). In Owens, the Fifth District determined that its previous view was erroneous because it added an extra requirement that went beyond the plain language of subsection 921.0026(2)(d). Id. The Owens court also adopted the reasoning of Judge Warner's special concurrence in Hunter. Id. The Fifth District accordingly affirmed the defendant's downward departure sentence even though there was no "evidence as to the treatment options available to [the defendant] in the DOC" related to his mental disorder. Id. at 1019, 1021.
It is a fundamental principle of Florida jurisprudence that penal statutes must be strictly construed. See Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); see also § 775.021(1), Fla. Stat. (2009) ("The provisions of th[e] [Florida Criminal] [C]ode and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."); § 775.012(2), Fla. Stat. (2009) (stating that one general purpose of the criminal code is to give an understandably fair warning of authorized sentences).
In construing subsection 921.0026(2)(d), our analysis begins with the actual language of the statute. See Heart of Adoptions, Inc., 963 So.2d at 198. In Koile v. State, 934 So.2d 1226 (Fla.2006), this Court explained:
Id. at 1230-31 (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64-65 (Fla. 2005) (internal citation omitted)). Courts should not construe unambiguous statutes in a manner that would extend, modify, or limit their terms or the obvious implications as provided by the Legislature. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984); see also Curry v. Lehman, 55 Fla. 847, 47 So. 18, 20 (1908) ("[I]t is the duty of the court to interpret laws and not to make them, and we are to make no subtraction or addition to the meaning of a statute.").
We additionally note that our Legislature has included "specialized treatment otherwise not available" language in a separate statute, section 958.11(3)(c), Florida Statutes (2013). Section 958.11(3)(c) authorizes the DOC to assign a youthful offender to a facility not designed for the care, custody, control, and supervision of youthful offenders if the offender needs "specialized treatment otherwise not available at the youthful offender facility." § 958.11(3)(c), Fla. Stat. Had the Legislature intended to require unavailability of specialized treatment in the DOC as an element of subsection 921.0026(2)(d), it could have said so. See Hopkins v. State, 105 So.3d 470, 474 (Fla.2012) ("Had the Legislature intended to exclude juvenile detention centers from the scope of section 784.082, it would have said so."); Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) ("Had the legislature intended the statute to import a more specific and definite meaning, it could easily have chosen words to express any limitation it wished to impose.").
In light of our holding, we agree with the Fourth District's decision to reverse Chubbuck's downward departure sentence and remand for a new sentencing hearing in order to afford the State an opportunity to present evidence, if any, as to whether the DOC can provide the required specialized treatment. Evidence which demonstrates that the DOC can so provide is one factor for the trial court's consideration in deciding whether to give a downward departure sentence.
Based on the foregoing, we hold that the defendant is not required to prove that the DOC cannot provide the required specialized treatment in seeking a downward departure sentence under subsection 921.0026(2)(d). In light of the above, we approve the Fourth District's decision in Chubbuck and we disapprove the decisions of the district courts in Ford, Scherber, Holmes, Wheeler, Green I, Mann, Tyrrell, Thompson, and Abrams, which hold to the contrary.
It is so ordered.
POLSTON, C.J., and LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.
QUINCE, J., concurs in part and dissents in part with an opinion, in which PARIENTE, J., concurs.
QUINCE, J., concurring in part and dissenting in part.
I concur in the majority's conclusion that the plain language of subsection
PARIENTE, J., concurs.
Id. at 57.
82 So.3d at 911.
§ 921.00265(2), Fla. Stat. (2009).