Opinion
Case No. 2D19-359
02-05-2020
STATE of Florida, Appellant, v. Jose DIAZ, Jr., Appellee.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee. Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.
MORRIS, Judge.
The State appeals Jose Diaz's downward departure sentences of eighteen months in prison for two charges of failing to report and reregister as a sex offender and one charge of failing to report in person as a sex offender.
Diaz was charged in one case with failing to report and reregister between April 1, 2016, and May 15, 2016. He was charged in a second case with failing to report and reregister between August 1, 2017, and November 13, 2017, and with failing to report in person between those dates. A year later, in December 2018, Diaz entered into a plea agreement that called for a sentencing cap of 107 months, which was the lowest permissible sentence reflected on his scoresheet.
At the sentencing hearing, defense counsel asked the trial court to consider a downward departure sentence under any of the statutory factors. The State responded that there was no statutory basis to depart. The trial court stated that
although the argument can be made that this case took—both of these cases took
a long time to resolve, there's no denying that Mr. Diaz has admitted guilt from the first day he walked in to this courtroom loudly and clearly on the record. So there certainly wasn't a need for any additional significant discovery or litigation. All right. I'm inclined to find grounds that Mr. Diaz cooperated with the State to resolve the current offense or offenses.
The trial court agreed that Diaz had made several admissions to the offenses at prior court dates and that he was forthcoming in his conversation with officers. The trial court found that Diaz fit the criteria for a downward departure sentence under section 921.0026(2)(i), Florida Statutes (2016), and sentenced him to eighteen months in prison on all three charges.
On appeal, the State argues that the trial court erred in sentencing Diaz to a downward departure sentence because the record does not support the statutory basis for departure. The State contends that a downward departure sentence is not justified merely because a defendant enters a plea to the charges or because a defendant cooperates after his offense was discovered. The State argues that Diaz did not cooperate by helping to solve his case or by turning himself in.
"There is a mixed standard of review for appeals of downward departure sentences." State v. Lackey, 248 So. 3d 1222, 1224 (Fla. 2d DCA 2018). "First, we ‘must determine whether the trial court applied the correct rule of law, and whether competent, substantial evidence supports the trial court's reason for imposing a downward departure sentence.’ " Id. (quoting State v. Johnson, 224 So. 3d 877, 879 (Fla. 2d DCA 2017) ). If the statutory reason is supported, "then we must ‘decide whether the trial court [abused its discretion] in determining that the downward departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case.’ " Id. (alteration in original) (quoting Johnson, 224 So. 3d at 879 ).
"As for cooperation, courts have found that a downward departure is warranted under section 921.0026(2)(i) if the defendant cooperated with the State to resolve the current offense or any other offense." State v. Platt, 203 So. 3d 194, 197 (Fla. 5th DCA 2016).
However, "[a] downward departure is not justified merely because the defendant cooperated after his offense was discovered." State v. Subido, 925 So.2d 1052, 1059 (Fla. 5th DCA 2006) (citing State v. Munro, 903 So. 2d 381, 382 (Fla. 2d DCA 2005) ("rejecting the downward departure sentence for a defendant who confessed to the police, lacked a prior record, and garnered the victim's mother's support")); see also State v. Bell, 854 So. 2d 686, 691 (Fla. 5th DCA 2003) (explaining that defendant has the burden to prove that a crime was resolved as result of his/her cooperation); State v. Bleckinger, 746 So. 2d 553, 555, 557 (Fla. 5th DCA 1999) (confessing after arrest and entering a guilty plea is not sufficient to constitute cooperation as a mitigating factor, however, turning one's self in, a full confession and pleading guilty is sufficient to support a downward departure). Furthermore, it is not enough that a defendant enters a guilty plea to all charges. State v. Arvinger, 751 So. 2d 74, 77 (Fla. 5th DCA 1999) (citing [ State v. ]Collins, 482 So. 2d [388,] 389 [ (Fla. 5th DCA 1985) ] ).
Id. at 197.
The statutory basis of section 921.0026(2)(i) is not supported by the evidence. Even if Diaz admitted to the offenses throughout his court proceedings and ultimately entered a plea to the charges, this is not sufficient to justify a downward departure under section 921.0026(2)(i).
Diaz argues that the facts support a downward departure under section 921.0026(2)(j), which provides that "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." However, the trial judge did not specifically cite that reason as a basis for departure. She stated that she was inclined to believe that this was an isolated incident under section 921.0026(2)(j), but she did not ultimately find that Diaz satisfied that statutory factor: "Under those circumstances I think that would qualify as isolated by comparison. Nonetheless, I do clearly find that he qualified under letter (i)." "When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation." § 921.002(3). However, the reasons for downward departure must be explained in writing or orally by the trial court. See §§ 921.002(3), 921.00265(2); State v. Hudson, 153 So. 3d 375, 377-78 (Fla. 2d DCA 2014).
Because the cited basis for a downward departure sentence is not supported by the record, we reverse and remand for a de novo resentencing. See Shine v. State, 273 So. 3d 935, 937 (Fla. 2019) ("[O]n remand for resentencing due to the substantive invalidity of a downward departure, the trial court is permitted to impose a downward departure as long as the departure ‘comports with the principles and criteria’ of the [Criminal Punishment Code]." (quoting Jackson v. State, 64 So. 3d 90, 93 (Fla. 2011) )); State v. Pinckney, 173 So. 3d 1139, 1140 (Fla. 2d DCA 2015) ("On remand, the court is free to impose another downward departure if [the defendant] can establish a valid basis.").
Reversed and remanded.
LaROSE and ATKINSON, JJ., Concur.