State v. Avery
The State appealed a downward-departure sentence imposed on Avery after his open plea to child pornography offenses, arguing the departure under section 921.0026(2)(d) (mental disorder requiring specialized treatment) lacked competent, substantial evidentiary support. The Fifth DCA agreed, holding that self-reported mental health issues—whether from the defendant, his wife, or a psychologist's report merely recounting Avery's own self-reports without a formal diagnosis—cannot support a downward departure, and that Avery also failed to show amenability to specialized treatment. The court vacated the sentence and remanded for a de novo resentencing consistent with McElroy.
Key facts
- Avery pleaded open to child pornography offenses and received a downward-departure sentence based on a claimed mental disorder requiring specialized treatment.
- The State appealed, arguing the departure lacked competent, substantial evidence because Avery's mental health issues were based on self-reports and a psychologist's report that merely recited those self-reports without independent formal diagnosis.
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Why it matters
This decision reinforces and applies the Sawyer/McElroy line of authority strictly limiting mental-disorder downward departures to cases with genuine, independently-sourced diagnostic evidence, closing a common defense… — full analysis with a trial
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