“Absurd”: When a Judge Uses Common Sense to Defeat a Mandatory Sentence

By: John Guidry

We pay good money to our judges so they can sort out real-life human dramas. We expect them to use Judgment. But when the Legislature imposes Minimum Mandatory Sentences—on everything from DUI to VOPs—there is often little room for a judge to maneuver. They become robots, inputting a “score” and outputting a prison sentence.

The Loophole (F.S. 921.0026): What if the defendant has a mental problem requiring special treatment? Subsection 921.0026(2)(d) allows a judge to go below the mandatory sentence if the defendant requires “specialized treatment for a mental disorder.”

• The Catch: In reality, this is rarely used because courts usually require the defendant to prove that the Department of Corrections (DOC) cannot provide that treatment. Proving that a billion-dollar prison system “can’t” do something is nearly impossible.

But there is light at the end of the tunnel.

Is the State seeking prison for a probation violation involving addiction?

Your history matters. Call John today at (407) 423-1117.

The Case: State v. Chubbuck (The War Hero)

Harry Chubbuck violated his probation (VOP) by testing positive for cocaine.

• The Score: The State demanded the mandatory minimum: 37.65 Months in Prison.
• The Crime: Testing positive for cocaine. (Yes, 3+ years in prison for a dirty urine screen).

Who was Harry? Harry was a 66-year-old Vietnam Veteran.

• Served as a surgical technician on air ambulances during the Tet Offensive.
• Awarded a Bronze Star and a Silver Star.
• Shot down four times in one day trying to rescue a radio operator.
• Suffered from severe PTSD, COPD, and Diabetes.

The Judge’s Reaction: The prosecutor stood there and demanded 37 months. The Judge had a different take:

“This defendant does not belong in prison… It’s absurd to have a 66-year-old man, who put his life on the line for our country… I question whether anybody in this courtroom, who sat home and watched the war on television, would have handled this any better.”

The Sentence: 98 Days (Time Served).

The Appeal: The “Not Limited To” Clause

The prosecutors—unhappy that a war hero didn’t die in prison—appealed the sentence. They argued that “PTSD” alone wasn’t enough to depart because the prison system could treat it.

The Ruling: The Appeals Court denied the prosecutor and upheld Harry’s freedom.

• The Reasoning: The statute lists reasons for departure (like mental illness), but it says mitigating factors “include, but are not limited to” those reasons.
• The Victory: This gave judges the discretion to look at the Whole Picture.
  • Harry’s Age (66).
  • Harry’s Service (Silver Star).
  • Harry’s Lack of Danger to the Public.
  • Harry’s Physical Health. When you combine all these factors, a Downward Departure is justified, even if the “Mental Health” excuse alone wasn’t perfect.

John’s 2026 Update: Veterans Court & The “Total Package” Defense

Note: In 2012, Harry had to rely on a brave judge. In 2026, we have specialized courts for this.

1. The Rise of Veterans Court Florida now has robust Veterans Treatment Courts (VTC).

• The Process: If we can prove your crime (or addiction) is linked to service-related trauma (PTSD, TBI), we can move your case out of regular criminal court.
• The Result: Instead of arguing for a “Departure” at sentencing, we get you into a diversion program where the goal is Dismissal, not just a lighter sentence.

2. The “Totality of Circumstances” Departure Chubbuck is still good law for non-veterans too.

• The Strategy: We don’t just argue one ground (like addiction). We stack them. We argue: Addiction + Age + Minor Offense + Remorse + lack of danger.
• The Trend: Judges in 2026 are more willing to use the “Not Limited To” clause to avoid sending elderly or sick people to prison, simply because the prisons are overcrowded and understaffed.

3. VOPs for Fentanyl Harry was violated for Cocaine. Today, VOPs often involve Fentanyl.

• The Warning: Judges are less lenient with Fentanyl use because of the overdose risk. They often view prison as “keeping you alive.” To win a departure now, we must have a Residential Bed waiting for you immediately upon release.

Don’t Let a Robot Sentence You

The Legislature wants judges to act like calculators. We remind them that they are human beings with the power to use common sense. If you have a story that deserves mercy, we will tell it.

Call me at (407) 423-1117. Let’s fight the score.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.