NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



MARIA CONSUELO HIRALDO,            )
DOC #H52613,                       )
                                   )
           Appellant,              )
                                   )
v.                                 )                Case No. 2D18-1678
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed April 24, 2019.

Appeal from the Circuit Court for Polk
County; Keith P. Spoto, Judge.

Howard L. Dimmig, II, Public Defender, and
Daniel Muller, Assistant Public Defender,
Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, Bilal Ahmed Faruqui, Assistant
Attorney General, Tampa, and Allison C.
Heim, Assistant Attorney General, Tampa
(substituted as counsel of record) for
Appellee.



SILBERMAN, Judge.

              Maria Consuelo Hiraldo seeks review of the sentences the trial court

imposed after she entered an open plea to burglary of a dwelling and grand theft.
Hiraldo argues that the court erred in determining that she failed to establish a legal

basis to impose a downward departure sentence based on her need for specialized

treatment for a mental disorder. We agree and reverse.

              Section 921.0026(2)(d), Florida Statutes (2016), provides for a departure

from the lowest permissible sentence under the Criminal Punishment Code1 when "[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." Hiraldo claimed that she suffers from and requires specialized treatment

for bipolar disorder. The trial court indicated an inclination to impose a downward

departure sentence, but it ultimately concluded that Hiraldo did not meet the legal

criteria in section 921.0026(2)(d) and imposed the lowest permissible sentence. The

court accepted the State's argument that Hiraldo's bipolar disorder had a substance

abuse component and was therefore not "a mental disorder that is unrelated to

substance abuse or addiction." See 

this ruling for competent, substantial evidence. See Camacho

v. State, 

, 48 (Fla. 2d DCA 2015). Hiraldo presented testimony from her

licensed mental health counselor that she had previously been diagnosed as bipolar

and was treated for that disorder in addition to a substance abuse disorder. The

counselor said that Hiraldo had been prescribed medications for her bipolar disorder

and that he monitored the medications and worked to provide her coping skills for that

disorder. The counselor did not testify that Hiraldo had been prescribed any

medications for her substance abuse disorder.



              1See   §§ 921.002-.244.


                                           -2-
                The counselor believed Hiraldo had made substantial improvements with

her bipolar disorder in that she had been regulating her emotions much better. He also

said she made substantial improvements with her substance abuse disorder in that she

had been clean for a year. The counselor believed that sending Hiraldo to jail or prison

would make it more difficult to monitor her bipolar medication and to treat both her

bipolar disorder and drug addiction. He thought the treatment he was providing was

best for her.

                We conclude that the trial court misconstrued the evidence when it

accepted the State's argument that Hiraldo's bipolar disorder had a substance abuse

component. Hiraldo's counselor made it clear that Hiraldo was being treated for two

disorders: bipolar disorder and substance abuse disorder. And Hiraldo's treatment for

the two disorders was different in that she was taking medication only for the bipolar

disorder. The goals of the treatments were also different: Hiraldo's improvements for

her bipolar disorder were measured by her ability to regulate her emotions, and her

improvements for her substance abuse disorder were measured by her ability to stay

clean.

                Thus, the trial court's ruling was not supported by competent, substantial

evidence. See Daniels v. State, 

, 222 (Fla. 2d DCA 2004) (holding that

the trial court erred in finding it did not have a legal basis to depart based on the need

for specialized treatment when the evidence established that the defendant's mental

disorder required treatment separate from his substance abuse treatment).

Accordingly, we reverse Hiraldo's sentences and remand for the trial court to reconsider




                                             -3-
Hiraldo's request for a downward departure.2 On remand, the parties should be

permitted to present additional evidence to establish Hiraldo's current status. See 

remanded.



KELLY and VILLANTI, JJ., Concur.




             2Weexpress no opinion as to whether Hiraldo's mental condition merits a
downward departure.


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