               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT



STATE OF FLORIDA,                           )
                                            )
             Appellant,                     )
                                            )
v.                                          )     Case No. 2D13-2595
                                            )
HERBERT ADOLPHUS PINCKNEY,                  )
                                            )
             Appellee.                      )
                                            )

Opinion filed September 9, 2015.

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

Pamela Jo Bondi, Attorney General, and
Brandon R. Christian, Assistant
Attorney General, Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender,
and Allyn M. Giambalvo, Assistant Public
Defender, Bartow, for Appellee.


CRENSHAW, Judge.


             The State of Florida appeals a downward departure sentence of twelve

months' probation in this battery case, asserting that the court lacked competent,

substantial evidence to impose the departure sentence. Specifically, it argues that there
was insufficient evidence that the victim provoked the incident within the meaning of

section 921.0026(2)(f), Florida Statutes (2011).1 Because the downward departure

sentence lacks competent, substantial evidence to support it, we reverse and remand

for resentencing.

              Herbert Pinckney, the defendant, pleaded to the battery of a woman with

whom he had a relationship. The record suggests that Pinckney pleaded under the

impression he was likely to get a departure sentence, though this was not based on a

plea bargain with the State but rather on comments by the judge. A nonvictim witness

was prepared to testify for the State at trial but because of the plea only testified at the

sentencing hearing. Her testimony, which the court explicitly found credible, indicated

that the victim was not the initial aggressor. Specifically, the witness testified that the

victim was outside the car and talking to the driver who then got out and attempted to

drag the victim into the car. The driver was then assisted by the passenger in throwing

the victim to the ground and kicking and punching her. Pinckney, too, testified and

asserted that the victim was the initial aggressor, that the victim spat upon him, and that

she took a swing at him before getting out of the car; his testimony was found not to be

credible. Yet the court, based largely on counsel's comments, granted the downward

departure and imposed a year probation.

              "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." State v. Kelleher, 142 So. 3d 958, 959 (Fla. 2d DCA 2014) (emphasis added)



              1
              We have jurisdiction. See § 924.07(1)(i), Fla. Stat. (2013); Fla. R. App. P.
9.140(c)(1)(M).



                                             -2-
(quoting Kezal v. State, 42 So. 3d 252, 254 (Fla. 2d DCA 2010)). The only evidence

favoring Pinckney was his own testimony. His counsel attempted to corroborate that

evidence which the court accepted on its face: "I find there is credible information from

Defense Counsel." But "it is axiomatic that the arguments of counsel are not

evidence . . . ." Geralds v. State, 111 So. 3d 778, 795 n.16 (Fla. 2010), as revised on

denial of reh'g (Feb. 2, 2012) (quoting Collins Fruit Co. v. Giglio, 184 So. 2d 447, 449

(Fla. 2d DCA 1966)). Counsel's corroboration was not under oath; it was only

argument. Favoring the State was the testimony of the nonvictim witness. Regarding

the nonvictim witness, the court stated, "I find the testimony of [the witness] from

Spokane, Washington to be very credible, and I appreciate her coming all the way

across the United States to testify here in Manatee County. And I do find her testimony

to be credible." Then turning to Pinckney's testimony, the court stated, "I do not find Mr.

Pinckney's testimony . . . to be credible."

              We have to give effect to the court's credibility conclusions. The

witnesses provided contradictory testimony, and Pinckney's was not credible; thus,

Pinckney's testimony alone fails to establish the requisite element for the downward

departure: that the victim was the initial aggressor. Cf. State v. Rife, 789 So. 2d 288,

292 (Fla. 2001) (discussing broadly the relevant mitigating factor). Because there was

no competent, substantial evidence supporting the court's conclusion that the victim was

the initial aggressor, this downward departure sentence must be reversed. On remand,

the court is free to impose another downward departure if Pinckney can establish a valid

basis. See Jackson v. State, 64 So. 3d 90, 93 (Fla. 2011).




                                              -3-
             Reversed and remanded for resentencing with directions.


KELLY, J., Concurs.
VILLANTI, C.J., Concurs with opinion.




VILLANTI, Chief Judge, Concurring.


             I fully concur in the majority opinion, but write to point out numerous

irregularities which may have contributed to the imposition of the erroneous sentence

imposed in this case.

             After jury selection but before the start of opening statements, defense

counsel told the judge that he had a "collateral issue" he wanted to raise concerning

whether the trial itself should go forward. Defense counsel then proceeded to discuss

at great length the prior relationship between the victim and Pinckney, the victim's

criminal history, and details of the victim's alleged involvement in drugs and

prostitution. Defense counsel then discussed the evidence presented at a prior trial

that involved different charges between the same victim and Pinckney. Defense

counsel noted that Pinckney had been acquitted after that prior trial, and he told the

court what the trial judge in that prior case had allegedly expressed as his personal

opinion about the victim's credibility. Defense counsel then explained that he believed

that the victim would have come to this trial and testified that Pinckney was not guilty of

these charges; however, the victim currently had a warrant out for her arrest and so

would not come to court, in large part because "she is very high on cocaine most likely




                                           -4-
right now, and doesn't want to withdraw in jail." Defense counsel told the court that he

anticipated that Pinckney would have to testify in order to assert his defenses, but that

there was a "problem" with Pinckney's prior record and that defense counsel was

concerned that the jury was "most likely not going to believe him because of his

record."

             The court then turned to the State and asked for its input on the case.

The State outlined what it believed the evidence would show. The court then stated

that "if your representation to the Court is that you have a case that can survive

potentially a judgment of acquittal or anything else, we'll deal with it and the case will

go forward." Immediately thereafter, defense counsel asked to approach the bench

and go off the record. The trial court agreed. What followed was a twenty-four minute

off-the-record discussion.

             When the court went back on the record, defense counsel stated that

Pinckney would enter an open plea but that he wanted to argue for a downward

departure sentence based on the victim being the initiator or provoker of the events.

Defense counsel admitted that the victim was not there to testify, but he stated that she

had testified at trial in the prior case that she was the provoker in that earlier case.

Defense counsel then told the court that he met with the victim in her jail cell and "she

told me she was going to testify in this case the exact same thing."

             In response, the State objected to any request for a downward departure

sentence and reiterated that the victim was not there to testify to the facts of this case.

The State then presented the testimony of a witness to the incident in question, who




                                            -5-
testified that the victim had been outside the car before the battery began and that she

did not initiate or provoke the attack.

             Defense counsel presented the testimony of Pinckney, who completely

denied beating or kicking the victim—essentially contradicting his own guilty plea.

Defense counsel then told the judge about the substance of the deposition testimony of

yet another witness, who allegedly would have exonerated Pinckney.

             At the conclusion of these presentations, the trial court found that the

testimony of the State's witness was "very credible" while Pinckney's testimony was not

credible. Nevertheless, the court found that there was "credible information from

Defense Counsel" that the victim had provoked the battery and that that was a basis for

a departure sentence.

             The problems raised by this series of events are myriad. First, it was

wholly inappropriate for defense counsel to argue what was, in essence, his motion for

judgment of acquittal before any evidence at all was presented. Second, it was wholly

inappropriate for defense counsel to attempt to sway the court with inadmissible

evidence concerning the victim's prior criminal activities, the victim's prior criminal

record, the victim's testimony at a prior trial on different charges, and the victim's

alleged statements made to defense counsel about what she would testify to at the

current trial if called. Third, it was inappropriate for the trial court to rely on defense

counsel's representations concerning what the victim would have testified to had she

been present, how other witnesses (who were also not present) testified at deposition,

and defense counsel's characterization of the victim's character and prior record.




                                             -6-
             Like the trial court, I recognize that defense counsel's representations on

these matters were made "as an officer of the court." However, sentencing decisions,

and particularly those relating to downward departure sentences, must be made based

on evidence. See Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). And regardless

of counsel's status as an officer of the court, representations made by counsel are not

evidence. See, e.g., Collins Fruit Co. v. Giglio, 184 So. 2d 447, 449 (Fla. 2d DCA

1966). And the only evidence credited by the trial court was that of the State's witness,

who testified that the victim neither initiated nor provoked the attack. Hence, it is

apparent that the trial court based its decision to depart not on whether a valid

departure ground had been factually established by the evidence but instead on

whether the trial court thought a downward departure sentence was appropriate for this

defendant based on counsel's representations concerning collateral and inadmissible

matters. But the court may not exercise its discretion to depart unless and until the

defendant proves that there is a legal basis upon which to depart—a basis never

established in this case. Because the trial court's determination that it had a legal

basis to depart downward was unsupported by the only competent, substantial

evidence in the record, the downward departure sentence cannot stand.

             Finally, I cannot condone the trial court's decision to have a twenty-four

minute off-the-record discussion with counsel during the proceedings. Obviously, we

will never know what was said in this off-the-record conversation, but the trial court

imposed an improper downward departure sentence immediately thereafter. It is

therefore fair to surmise that the trial court was swayed by whatever further

representations were made by defense counsel at this unreported sidebar. If




                                           -7-
unreported bench conferences are ever justified in criminal proceedings, this was

certainly not one of those occasions. And unfortunately, as here, proceedings that

follow such a course are generally doomed to be redone.




                                         -8-
