         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. 5D16-2353

JOSEPH MICHAEL MILICI,

             Appellee.

________________________________/

Opinion filed April 28, 2017

Appeal from the Circuit Court
for Flagler County,
Matthew M. Foxman, Judge.

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

James S. Purdy, Public Defender, and
Jeri M. Delgado, Assistant Public
Defender, Daytona Beach, for Appellee.


WALLIS, J.

      The State appeals the trial court's imposition of downward departure sentences

following Joseph Michael Milici's violation of probation ("VOP"). We reverse Milici's

sentences and remand for resentencing consistent with this opinion.
                                           FACTS

       In May 2011, the State charged Milici by information with principal to robbery with

a weapon (count 1) and principal to aggravated assault with a deadly weapon (count 2).1

The State alleged that Milici obtained a fraudulent prescription for oxycodone that he

could not fill at a local pharmacy, despite numerous attempts. Milici and his co-defendant

then drove to a nearby department store, where the co-defendant purchased a pellet gun.

Milici drove back to the pharmacy and dropped off his co-defendant, who entered the

store while Milici waited outside. The co-defendant proceeded to brandish the pellet gun

at the clerk and steal eight bottles of oxycodone. Milici served as the getaway driver

following the robbery.

       In January 2013, Milici entered a plea of nolo contendere to both counts. The trial

court sentenced him to fifteen years' incarceration, suspended upon completion of two

years' community control, followed by ten years' probation (count 1) and five years'

incarceration, suspended upon completion of two years' community control, followed by

two years' probation (count 2). In March 2013—only two months into his community

control—Milici was arrested and charged with sale of a schedule II controlled substance

and sale of a schedule IV controlled substance. Thereafter, the State filed a VOP report,

but the trial court adjudicated Milici incompetent. The trial court modified the conditions of

Milici's community control, ordering him to remain at a residential facility and comply with

their rules. In March 2016, the State filed an addendum to the March 2013 violation report,

alleging that Milici violated his community control after being evicted from the residential




       1   The State later nolle prossed count 3 for trafficking in oxycodone.


                                               2
facility for using controlled substances. The trial court adjudicated Milici competent

pursuant to a new competency evaluation.

       The trial court held a revocation hearing in April 2016. At the hearing, the State

explained that a confidential informant who knew Milici contacted him and requested to

purchase two types of prescription drugs. Milici left a bottle of pills by an electrical pole in

front of his house and told the confidential informant to take the pills and leave the money

in the same place. After completing the transaction, the confidential informant requested

more pills. Approximately one hour later, Milici sold the confidential informant additional

pills by a hand-to-hand transaction. Law enforcement arrested Milici and charged him

with three counts for sale of a controlled substance. The trial court granted the State's

motion to revoke Milici's community control, and the case proceeded to a VOP hearing.

       At the VOP hearing, Milici admitted to violating his probation and entered an open

plea of nolo contendere to the three counts for sale of a controlled substance. At the

sentencing hearing, Milici presented testimony from several witnesses, including his two

sisters, his pastor, a crisis counselor, and the owner of the group home at which he

previously resided. Milici's witnesses testified that Milici was generally a good person who,

despite making several errors in judgment, did not pose a danger to the community.

Milici's witnesses believed that he could be rehabilitated into a functioning member of

society.

       Regarding the robbery, Milici testified that he drove the car without any knowledge

that his co-defendant intended to rob the pharmacy. He also minimized the subsequent

drug transactions, describing the event as him simply providing the pills to his friend as a

favor. Milici rejected the notion that he was a drug dealer by stating, "You know, I wasn't




                                               3
out there like selling the drugs the way [the State's] making it sound. Somebody asked

me for some pills. And I did it."

       Following Milici's testimony, defense counsel urged the trial court to impose a

downward departure sentence. After considering argument from both sides, the trial court

ultimately determined that the circumstances justified downward departure. 2 The trial

court explained that Milici's conduct amounted to "an isolated incident for which . . . Milici

has shown remorse." The trial court further explained that Milici acted "in an

unsophisticated manner." Based on these findings, the trial court imposed a downward

departure sentence of thirty days' incarceration, followed by one year of community

control, followed by three years' probation. Without the departure, Milici's scoresheet

reflected a minimum sentence of 88.5 months' incarceration.

       The trial court subsequently entered an order detailing the grounds for imposing

the downward departure sentences:

              1. After an open plea, this court elected to depart from the
              scoresheet guidelines.

              2. The Defendant was on probation for robbery when he was
              arrested and charged with three counts of sale of a controlled
              substance.

              3. As a backdrop to this entire matter, the Defendant's mental
              capacity has been in question. This relates both to his
              competency and intelligence quotient. The record is replete
              with the history of evaluations, the Defendant ultimately being
              found competent to proceed immediately prior to the entry of
              this plea.

              4. As to the robbery, the Defendant never entered the store in
              question and functioned only as a "getaway" driver. When


       2The trial court prefaced its ruling by stating, "Let me tell you something, what I'm
doing is probably going to be appealed and probably reversed, but I'm going to do it
anyway."


                                              4
              followed by police, the Defendant immediately pulled over and
              fully cooperated with law enforcement.

              5. As to the Sale of Controlled Substance cases, the
              Defendant was contacted by a friend (functioning as a
              confidential informant for law enforcement). The Defendant
              sold small amounts of controlled substances that he,
              personally, was lawfully prescribed. At no time did he initiate
              the transactions, nor did he attempt to purvey them to the
              general public. The Defendant was extremely apologetic for
              his actions.

                                 ANALYSIS

       We employ a two-step analysis when reviewing a trial court's imposition of a

downward departure sentence. 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.'" State v. Browne, 187 So.

3d 377, 378 (Fla. 5th DCA 2016) (quoting State v. Leverett, 44 So. 3d 634, 636 (Fla. 5th

DCA 2010)). Second, if the "trial court's reason for departure was in accord with the law

and supported by competent, substantial evidence, the appellate court must then decide

whether the trial court was correct in determining that the downward departure sentence

was in the best interest of the defendant." Leverett, 44 So. 3d at 636 (citing State v.

Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006)).

       Section 921.0026(2), Florida Statutes (2016), sets forth a non-exhaustive list of

mitigating circumstances that permit the imposition of a downward departure sentence.

In this case, the trial court relied on the following grounds:

              (b) The defendant was an accomplice to the offense and was
              a relatively minor participant in the criminal conduct.

              (c) The capacity of the defendant to appreciate the criminal
              nature of the conduct or to conform that conduct to the
              requirements of law was substantially impaired.



                                              5
              ....

              (j) The offense was committed in an unsophisticated manner
              and was an isolated incident for which the defendant has
              shown remorse.

§ 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to "prove these

elements, or other mitigating factors, before the trial court will depart." Wallace v. State,

197 So. 3d 1204, 1205 (Fla. 1st DCA 2016) (citing State v. Jones, 122 So. 3d 517, 518

(Fla. 1st DCA 2013)).

       We first address the trial court's departure under section 921.0026(2)(j). This

subsection permits downward departure where three elements are present: "(a) the

offense must have been 'committed in an unsophisticated manner,' (b) the offense must

have been 'an isolated incident,' and (c) the defendant must have 'shown remorse' for the

offense." State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (quoting §

921.0026(2)(j), Fla. Stat. (2003). "To justify departure on this basis, all three elements

must be articulated by the trial judge and supported by the record." State v. Cooper, 889

So. 2d 119, 119 (Fla. 4th DCA 2004).

       Turning to the first element, we note that neither the trial court's oral

pronouncements nor its written order explain how Milici committed his offenses in an

unsophisticated manner. Indeed, the trial court's written findings do not employ the term

"unsophisticated." The trial court also failed to make a specific oral finding, stating only,

"it was definitely committed in an unsophisticated manner. No one could argue that." The

trial court's failure to articulate how Milici committed his crimes in an unsophisticated

manner alone justifies reversal of the trial court's downward departure on this ground.

See id.



                                             6
       Even if the trial court had entered sufficient findings regarding unsophistication, no

competent, substantial evidence supports the trial court's findings that these offenses

were isolated incidents for which Milici showed remorse. Milici's thirteen prior

convictions—which reflect a pattern of crime related to narcotics—should have precluded

a finding that his most recent offenses were isolated incidents. Moreover, Milici's offenses

have steadily increased in severity over time; although his original offenses primarily

concerned simple possession of narcotics, he has since escalated to obtaining fraudulent

prescriptions, attempted trafficking in and sale of narcotics, and even armed robbery.

Thus, no competent, substantial evidence supports the trial court's finding that Milici's

offenses were isolated incidents. See State v. Thompkins, 113 So. 3d 95, 99 (Fla. 5th

DCA 2013) ("Even if we were to overlook [defendant]'s prior burglary conviction, the

remainder of his criminal history would vitiate any suggestion that his current crimes were

isolated incidents under the statute."); State v. Deleon, 867 So. 2d 636, 637 (Fla. 5th DCA

2004) ("[Defendant]'s offense could not have been characterized as isolated because his

score sheet reflected previous offenses including four third-degree felonies, one second-

degree felony and various misdemeanors.").

       Addressing the third element, remorsefulness, the record reflects that Milici

refused to accept responsibility for his actions. When testifying about his conviction for

armed robbery, Milici maintained that he did not know anything "about fraudulent

prescriptions or anything like that." Rather, Milici proclaimed that his co-defendant simply

asked for a ride. Milici similarly declined to accept responsibility for selling controlled

substances, reasoning that he sold prescription drugs to his friend "to do him a favor." In

light of Milici's testimony, we find that no competent, substantial evidence supports the




                                             7
trial court's finding that he showed remorse as contemplated by section 921.0026(2)(j).

See, e.g., Ayers, 901 So. 2d at 945 ("It is impossible for a defendant who refuses to accept

responsibility for an offense to show remorse for that offense."). For these reasons, we

find that the trial court abused its discretion insofar as it relied on section 921.0026(2)(j)

as a basis for downward departure.

       We next address the trial court's departure under section 921.0026(2)(b), which

provides that the trial court may impose a downward departure sentence where "[t]he

defendant was an accomplice to the offense and was a relatively minor participant in the

criminal conduct." § 921.0026(2)(b), Fla. Stat. Unfortunately, few cases have expanded

on what circumstances make one's participation in criminal activity "relatively minor."

Furthermore, Milici offered no testimony or other evidence supporting the trial court's

departure on this ground. See State v. Johnson, 197 So. 3d 1268, 1269 (Fla. 2d DCA

2016) (reversing downward departure where "[n]o testimony or evidence was presented

to support the assertion that [defendant] was a minor participant in the offense").

       Regardless, we disagree that one who obtains a fraudulent prescription,

unsuccessfully attempts to fill it, drives his co-defendant to purchase a pellet gun, and

drives back to rob the pharmacy is a "minor participant" simply because he or she drove

the getaway vehicle in lieu of entering the pharmacy during the robbery. In addition,

caselaw supports the State's position that Milici was not a "relatively minor participant"

with regard to his charges for sale of controlled substances simply because he sold

narcotics to a confidential informant. See State v. Holsey, 908 So. 2d 1159, 1161 (Fla.

1st DCA 2005) (reversing downward departure based upon section 921.0026(2)(b) where

defendant sold narcotics to an undercover officer during a sting operation). Accordingly,




                                              8
we find that no competent, substantial evidence supports the trial court's downward

departure under section 921.0026(2)(b).

       Finally, we address the trial court's departure under section 921.0026(2)(c). "For

section 921.0026(2)(c) to apply, it is not enough that a defendant simply not know that

what he was doing was criminal or wrong; the defendant must have been unable to

understand that what he was doing was criminal or wrong." State v. Johnson, 79 So. 3d

146, 148 (Fla. 4th DCA 2012). However, "[t]he fact that the evidence presented the

possibility that substance abuse may have been an independent cause of [the

defendant]'s impaired capacity does not mean that, as a matter of law, section

921.0026(2)(c) is unavailable as a basis for departure." Camacho v. State, 164 So. 3d

45, 48 (Fla. 2d DCA 2015).

       Here, no competent, substantial evidence supports the trial court's findings

regarding section 921.0026(2)(c). Unlike many cases addressing this issue, Milici

presented no expert testimony at the VOP hearing to establish that his alleged mental

health issues prevented him from appreciating the criminal nature of his actions. Cf. id.;

State v. Massingill, 77 So. 3d 677, 680 (Fla. 3d DCA 2011). The trial court considered

expert testimony at the hearing on Milici's motion to withdraw his plea, but it nonetheless

found that he was competent at the time that he entered the plea. In addition, although

the trial court noted that Milici had a history of mental illness, it failed to articulate how

that mental illness "substantially impaired" his ability to "appreciate the criminal nature of

the conduct." See § 921.0026(2)(c), Fla. Stat.

                                      CONCLUSION




                                              9
       We recognize that trial courts enjoy a "superior vantage point in assessing the

credibility of witnesses and in making findings of fact." Taylor v. State, 937 So. 2d 590,

599 (Fla. 2006) (quoting Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999)). However,

the record in this case reflects that the trial court improperly imposed downward departure

sentences not based on the evidence at the hearing, but rather on its own belief that

sentencing Milici in accordance with his scoresheet "serve[d] no legitimate purpose." See

State v. Chesney, 509 So. 2d 380, 381 (Fla. 2d DCA 1987) ("[T]he judge's own belief that

a reduced sentence is more appropriate is an impermissible reason for departure." (citing

Williams v. State, 492 So. 2d 1308, 1309 (Fla. 1986))). Indeed, the trial court's oral

pronouncements at the sentencing hearing demonstrate that it did not truly believe that

any enumerated mitigating circumstances justified downward departure.

       Based on the foregoing, we find that no competent, substantial evidence supports

the trial court's reasons for departure. Accordingly, we reverse Milici's sentences and

remand for resentencing. We note that, on remand, the trial court may still impose a

downward departure sentence "if such a sentence is supported by valid grounds." State

v. Lindsay, 163 So. 3d 721, 725 (Fla. 5th DCA 2015) (citing Jackson v. State, 64 So. 3d

90 (Fla. 2011)). Otherwise, the trial court must impose sentences that comport with the

applicable statutes.



       REVERSED and REMANDED for Resentencing.


COHEN, C.J. and LAMBERT, J., concur.




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