
    Allison N. NAPOLES, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-3895.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Ñapóles filed a petition alleging ineffective assistance of appellate counsel. We grant the petition and remand for resentencing.

Ñapóles was charged with first-degree grand theft for embezzling over a million dollars from her employer’s trust account. She entered an open plea and moved for a downward departure based on several mitigating factors under section 921.0026, Florida Statutes (2007), including the need for specialized treatment for her bipolar disorder. In particular, Ñapóles relied on section 921.0026(2)(d), which provides that a departure is reasonably justified when the 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.

At the hearing, Ñapóles and one of her physicians testified about her condition and amenability to treatment. Regarding the treatment options in prison, Ñapóles’ physician indicated only that they were “lacking” when compared to outside treatment and that lower quality medications were typically used.

The state relied on State v. Green, 971 So.2d 146 (Fla. 4th DCA 2007), in arguing that Ñapóles had not established a basis for a downward departure because she had produced no evidence that out-patient therapy and medication were not available in prison to treat her condition.

The court addressed each of the grounds for mitigation that were raised in the motion. With regard to the specialized treatment issue, the court made the following statement:

The need for treatment of mental disorder available in prison. There’s nothing before this Court, that if Miss Ñapóles goes to Florida State Prison, that she cannot receive medication or be seen in prison if she needs to be.

It denied the motion and sentenced Ña-póles to ten years’ imprisonment. The judgment and sentence were per curiam affirmed on appeal.

In her petition, Ñapóles argued that appellate counsel should have challenged the denial for downward departure based upon State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012), which was decided after her sentencing, but during the pendency of her appeal. We agree.

In Chubbuck, we held that the plain language of section 921.0026(2)(d) does not require a defendant to prove that the Department of Corrections “cannot provide the specialized treatment required” in order for a trial court to grant a downward departure under that subsection. Id. at 921. After we certified conflict with other districts, the Florida Supreme Court reviewed and approved our decision. See State v. Chubbuck, 141 So.3d 1163 (Fla.2014). In doing so, the Court noted that “[if] 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.” Id. at 1170. It reiterated that evidence showing that the DOC can provide the required specialized treatment is merely one factor for the court to consider in deciding whether to give a downward departure sentence. Id. at 1171.

In this case, the lower court’s discussion on this issue was scant. Nevertheless, it appears to some degree that the court believed it could not grant a departure unless Ñapóles proved that she could not obtain the necessary treatment in prison. Because Chubbuck eliminated this requirement, the issue was meritorious and would have resulted in reversal had it been raised on appeal. See Perez v. State, 107 So.3d 537 (Fla. 4th DCA 2013).

Accordingly, we grant the petition and reverse and remand for resentencing. We note the following on remand:

[T]he state should have the opportunity to present evidence as to whether the DOC can provide the required “specialized treatment.” However, if the state presents such evidence ... the trial court is not precluded from granting [appellant’s] request for downward departure. ■ Rather, the state’s evidence is merely an additional factor which the trial court may consider in exercising its discretion as to whether to grant [appellant’s] request for downward departure.

Colletta v. State, 126 So.3d 1090, 1091-92 (Fla. 4th DCA 2012).

WARNER, GROSS and TAYLOR, JJ., concur.  