       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                     July 18, 2014


STATE OF FLORIDA,                           )
                                            )
              Appellant,                    )
                                            )
v.                                          )         Case No. 2D13-3819
                                            )
TIMOTHY KELLEHER,                           )
                                            )
              Appellee.                     )
                                            )



BY ORDER OF THE COURT:


       Appellant's motion for rehearing is granted. The prior opinion dated May 28,

2014, is withdrawn, and the attached opinion is issued in its place. No further motions

for rehearing will be entertained.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




JAMES BIRKHOLD, CLERK
                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


STATE OF FLORIDA,                             )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D13-3819
                                              )
TIMOTHY KELLEHER,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed July 18, 2014.

Appeal from the Circuit Court for Manatee
County; John F. Lakin, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin-
Schomaker, Assistant Attorney General,
Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender,
and Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellee.




CRENSHAW, Judge.

              The State of Florida appeals the downward departure sentence imposed

for Timothy Kelleher's convictions of four counts of sale of illegal drugs, three of which

were third-degree felonies and one of which was a second-degree felony. Pursuant to

section 921.0026(2)(j), Florida Statutes (2011), a court can impose a sentence below
the Criminal Punishment Code guidelines if "[t]he offense was committed in an

unsophisticated manner and was an isolated incident for which the defendant has

shown remorse." Id. Because the court erred in concluding the offense was committed

in an unsophisticated manner and was an isolated incident, we reverse the downward

departure sentence and remand for resentencing.

Facts

              An undercover officer bought drugs from Kelleher in three transactions

over the course of one week; Kelleher approached the officer at the third buy. Although

Kelleher has had no felonies on his record for over ten years, he had a lengthy prior

record including over twenty misdemeanors and over ten felonies some of which were

violent felonies. The older felonies were scored because some of his misdemeanors

occurred since his last felony. Thus, his scoresheet reflects a score of 84.6 points for

which the lowest unmitigated sentence would be 42.45 months' prison. At sentencing,

Kelleher requested a downward departure sentence for an unsophisticated, isolated

offense for which the defendant has shown remorse under section 921.0026(2)(j); the

State requested a bottom-of-the-guidelines sentence. The court imposed a downward

departure sentence of three months' jail with eight months' jail suspended and a

probationary period of twelve months thereafter to run concurrently on each count; the

State appealed.

Discussion

              "In order to support the trial court's reasoning for the downward departure,

it was necessary for there to have been competent, substantial evidence that (1) the

offense was committed in an unsophisticated manner, (2) it was an isolated incident,




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and (3) the defendant had shown remorse." State v. Butler, 787 So. 2d 47, 48 (Fla. 2d

DCA 2001) (citing § 921.0026(2)(j), Fla. Stat. (2000); State v. Santomaso, 764 So. 2d

735, 737 (Fla. 2d DCA 2000)). " 'The trial court must first determine whether it can

depart—whether the defendant has met the burden of establishing sufficient factual

support for a valid legal ground.' " Kezal v. State, 42 So. 3d 252, 254 (Fla. 2d DCA

2010) (quoting State v. Green, 890 So. 2d 1283, 1286 (Fla. 2d DCA 2005)). In this

case, Kelleher failed to establish that the manner of his offense was unsophisticated

and the incident isolated.

              Turning first to whether the manner was unsophisticated, in at least one

instance it was Kelleher who approached the detective to sell drugs. Although Kelleher

did not use any mechanism or calculus to determine to whom he should sell drugs, and

usually was approached by detectives, that conduct was not consistent. Rather, after

establishing a relationship with the detective, Kelleher sought him out upon spotting him

nearby. At first glance this case is similar to State v. Fleming, 751 So. 2d 620 (Fla. 4th

DCA 1999), which concluded that the simple purchase of cannabis from a police officer

who was currently executing a search warrant was unsophisticated. However, this case

is distinguishable from Fleming because Kelleher approached the detective at least

once. Further, this is a case of sale to a police officer, which is more involved—Kelleher

had to obtain a supply in order to sell the drugs—than is purchase, as in Fleming.

Because Kelleher failed to establish that the manner of his offense was unsophisticated,

we must reverse on this ground.

              We are also compelled to reverse because Kelleher failed to establish that

his offense was an isolated incident. "[T]he issue for this [c]ourt is whether [Kelleher's]




                                            -3-
criminal history is so extensive that it precludes a downward departure sentence under

section 921.0026(2)(j) . . . ." State v. Waterman, 12 So. 3d 1265, 1268 (Fla. 4th DCA

2009). As in Waterman, Kelleher's prior history falls somewhere "in the middle of the

spectrum of criminal records, where on one end lies the defendant with a clearly

excessive record, and on the other end lies a defendant with no prior criminal record."

Id. Though Kelleher is correct that his prior history would not have been scored at all

but for some misdemeanors because of the lapse between his prior offenses and the

charged offense, that does not change that he has a lengthy history. His history is

aggravated by the fact that this case itself consists of several occurrences over the

course of a week. See id. Compare State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th

DCA 2007) (Warner, J., concurring specially) ("Having only two misdemeanor

convictions ten years [prior] does not prevent a finding that this offense is an isolated

incident."), and State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999) (holding an

incident was isolated where there was only one prior conviction), with State v. Gaines,

971 So. 2d 219, 220-21 (Fla. 4th DCA 2008) (holding that where defendant had

eighteen prior convictions including several forcible felonies, a downward departure

under section 921.0026(2)(j) cannot be sustained), and State v. Stephenson, 973 So.

2d 1259, 1263-64 (Fla. 5th DCA 2008) (same for seventeen prior convictions). In those

cases on the higher end of the spectrum, defendants have been held not to have

committed offenses that are isolated incidents. Kelleher's criminal history is so

extensive that it precludes a downward departure sentence under section

921.0026(2)(j).




                                            -4-
            Because the circuit court erred in imposing a downward departure

sentence, we reverse the sentence and remand for resentencing.

            Sentence reversed.


MORRIS and SLEET, JJ., Concur.




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