         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Appellant,

 v.                                                    Case No. 5D17-3117

BARON CANARD ROGERS,

             Appellee.

________________________________/

Opinion filed June 29, 2018

Appeal from the Circuit Court
for Brevard County,
Nancy Maloney, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona
Beach, for Appellant.

James S. Purdy, Public Defender, and
Darnelle Paige Lawshe, Assistant Public
Defender, Daytona Beach, for Appellee.

PALMER, J.

      The State of Florida appeals the downward departure sentences imposed on

Baron Canard Rogers (the defendant). We reverse.

      The State charged the defendant with dealing in stolen property and giving false

verification of ownership when conducting a transaction with a pawnbroker. He pled guilty

to the charges. The trial court initially sentenced the defendant to two terms of seven
years of imprisonment; however, during a subsequent hearing, the trial court re-

sentenced the defendant, imposing downward departure sentences.

      The State contends that the trial court reversibly erred in imposing downward

departure sentences, asserting that the reasons for imposing the sentences are either not

legally valid or not supported by substantial competent evidence. We agree.

      A downward departure sentence will be affirmed on appeal if the reason given by

the trial court for departing is permissible and supported by substantial competent

evidence. State v. Centeno, 192 So. 3d 705, 706 (Fla. 5th DCA 2016)(citing State v. Burt,

183 So. 3d 1117, 1118 (Fla. 5th DCA 2015)).

      Here, the trial court announced its reasons for departure as follows:

             All right, for the reasons that were just articulated I'm going to
             downward depart, and that is the undiagnosed mental illness
             that your mother testified to that you had had since you were
             a child. The fact that it was a non—violent felony involving
             property, that there was no injury or opportunity for injury to
             other persons.
             ....
             Okay. I'm going to find that it was -- the isolated incident that
             the Defendant has expressed remorse here in the courtroom
             in that all he did was hurt his family by his stupidity. I'm going
             to find that there's no redeeming value in sending you to
             prison and the cost to our society is too great.
             ....
             [T]he other point, that the need for the payment of restitution
             to the victim outweighs a need for a prison sentence.

None of these reasons justify the imposition of the downward departure sentences.

      As for the trial court's statutory reasons for departure, the trial court erred in

concluding that departure sentences were warranted based on the fact that the

defendant's crimes were isolated incidents for which he showed remorse. Section

921.0026(2)(j) of the Florida Statutes (2017) authorizes the imposition of a departure




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sentence when the "offense was committed in an unsophisticated manner and was an

isolated incident for which the defendant has shown remorse." Importantly, all three

elements must be articulated by the trial court to justify departure on this ground. State v.

Milici, 219 So. 3d 117, 121–22 (Fla. 5th DCA 2017); State v. Lindsay, 163 So. 3d 721,

724 (Fla. 5th DCA 2015). Here, the trial court failed to articulate that the defendant

committed his crimes in an unsophisticated manner; therefore, this reason for departure

is invalid.

        Next, the trial court erred in imposing the downward departure sentences based

on the fact that the need for the payment of restitution to the victim outweighed the need

for a prison sentence. See § 921.0026(2)(e), Fla. Stat. (2017). In order to satisfy the terms

of the statute, "the defendant must present some evidence of the victim's need." State v.

Wheeler, 180 So. 3d 1117, 1119 (Fla. 5th DCA 2015). In this case, the defendant failed

to present any evidence regarding the loss sustained by the victim; therefore, this ground

for departure is not supported by the evidence.

        The trial court's finding that departure was warranted based on the defendant's

undiagnosed mental illness is also invalid. Section 921.0026(2)(d) of the Florida Statutes

(2017) authorizes the imposition of a departure sentence when a 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." Here,

the defendant did not present evidence on any of these elements. See Lee v. State, 223

So. 3d 342, 359 (Fla. 1st DCA 2017).

        Furthermore, the trial court's non-statutory reasons also fail to support departure.

               When the court bases a departure on a non-statutory factor,
               the factor must be permissible and supported by competent,



                                              3
              substantial evidence. State v. Bowman, 123 So. 3d 107, 109
              (Fla. 1st DCA 2013). To be permissible, the non-statutory
              mitigator must be consistent with legislative sentencing
              policies. Id. “The mitigating factors specifically listed by the
              legislature focus on the nature of the crime, the conduct of the
              defendant or the mental capacity, condition, or attitude of the
              defendant. Further, the first purpose of sentencing is to
              punish, not rehabilitate. Finally, the legislative sentencing
              policy is to ensure that violent criminals are incarcerated.”
              State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998).

Lee, 223 So. 3d at 359–60.

       The trial court concluded that departure was permissible because, during the

commission of the defendant's crimes, there was no injury or opportunity for injury to other

persons. This conclusion does not support the imposition of the downward departure

sentences because personal injury was already taken into account during sentencing by

virtue of the computations performed in preparing the defendant's Criminal Punishment

Code worksheet. See State v. Chapman, 805 So. 2d 906, 908 (Fla. 2d DCA 2001) (citing

to section 921.0024, Florida Statutes, which provides that victim injury is a consideration

when calculating scoresheets).

       The trial court further erred in departing downward based on the fact that the

defendant's crimes were non-violent felonies involving property. The defendant argued

below that this departure reason was proper based on the language of section 921.185

of the Florida Statutes (2017). That statute reads:

              921.185. Sentence; restitution a mitigation in certain
              crimes

              In the imposition of a sentence for any felony or misdemeanor
              involving property, but not injury or opportunity for injury to
              persons, the court, in its discretion, shall consider any degree
              of restitution a mitigation of the severity of an otherwise
              appropriate sentence.




                                             4
Section 921.185 does not justify the downward departure sentences in this case because

the trial court did not impose a sentence which used restitution to mitigate the severity of

the defendant's "otherwise appropriate sentence." Instead, the court merely entered an

order directing the defendant to pay $463.77 in restitution. Cf. Noel v. State, 127 So. 3d

769, 770 (Fla. 4th DCA 2013), rev. on other grounds, 191 So. 3d 370 (Fla. 2016)

(upholding sentencing judge's decision to mitigate the length of a guidelines sentence

provided the defendant made payment of restitution to the victims).

       Lastly, the trial court erred in concluding that departure was warranted because

there was no redeeming value in sending the defendant to prison. We held this reason to

be invalid in State v. Thompkins:

              We are left with the last non-statutory ground—that there is
              no redeeming value to sending Thompkins to prison. This too
              is an invalid ground. “In evaluating a non-statutory mitigator,
              a court must determine whether the asserted reason for a
              downward departure is consistent with legislative sentencing
              policies.” State v. Knox, 990 So. 2d 665, 669 (Fla. 5th DCA
              2008) (citations omitted); see also Chestnut. The stated policy
              of the Criminal Punishment Code is to punish miscreants for
              their crimes. § 921.002(1)(b), Fla. Stat. (2011) (“The primary
              purpose of sentencing is to punish the offender.”); Moore v.
              State, 882 So. 2d 977, 985 (Fla. 2004) (“The Legislature
              expressed that the primary purpose of sentencing is to be
              punishment.” (citation omitted)); State v. McKnight, 35 So. 3d
              995, 997 (Fla. 5th DCA 2010); Chestnut, 718 So. 2d at 313
              (“Further, the first purpose of sentencing is to punish, not
              rehabilitate.”). Whether there is any redeeming value to the
              criminal in sending him to prison is largely of secondary
              concern. See § 921.002(1)(b), Fla. Stat. (2011); State v. Hall,
              47 So. 3d 361, 364 n. 5 (Fla. 2d DCA 2010) (“Rehabilitation is
              a secondary goal, and it is a stated policy that a defendant's
              sentence should increase with the length and nature of the
              defendant's prior record.” (citing § 921.002(1)(b), (d)));
              Chestnut, 718 So.2d at 314 (“It is obvious that prison will
              always be detrimental to one's future even if it is essential to
              his appropriate punishment. But the consequence of no prison
              for violent criminals seems a far worse societal problem.”).



                                             5
113 So. 3d 95,100 (Fla. 5th DCA 2013).

      Because the trial court failed to set forth valid reasons for departure, the

defendant's departure sentences are reversed and this matter is remanded for re-

sentencing. On remand, the trial court may still impose downward departure sentences

provided that they are supported by valid reasons. Otherwise, the trial court must impose

sentences that comport with applicable statutes. See State v. Lindsay, 163 So. 3d 721,

725 (Fla. 5th DCA 2015).



      REVERSED and REMANDED.



EVANDER and EISNAUGLE, JJ., concur.




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