       Third District Court of Appeal
                               State of Florida

                         Opinion filed January 24, 2018.

   The Opinion is not final until disposition of any further motion for rehearing
and/or motion for rehearing en banc. Any previously-filed motion for rehearing en
                              banc is deemed moot.
                                ________________

                               No. 3D15-2876
                          Consolidated: 3D15-2877
                Lower Tribunal Nos. 14-890-A-K & 14-891-A-K
                             ________________

                            The State of Florida,
                                   Appellant,

                                       vs.

                           Derek Lang Shine Jr.,
                                   Appellee.


      Appeals from the Circuit Court for Monroe County, Mark H. Jones, Judge.

      Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas and
Jonathan Tanoos, Assistant Attorneys General, for appellant.

     Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Jeffrey Paul
DeSousa, Assistant Public Defenders, for appellee.


Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ JJ.

      SUAREZ, J.

                       ON MOTION FOR REHEARING

      The State of Florida moves for rehearing of this Court’s August 23, 2017
opinion.   We grant rehearing, withdraw our prior opinion and substitute the

following opinion in its stead.

      The State of Florida appeals the downward departure sentence imposed upon

Defendant Derek Lang Shine on December 22, 2015 in connection with a

probation violation.1 Finding that the trial court failed to provide a valid legal

ground for its downward departure, we reverse.

      In 2015, Shine was convicted and sentenced to three years of drug offender

probation, pursuant to a plea agreement with the State. Later in 2015, Shine

violated his probation and the trial court revoked probation and sentenced him to

forty (40) months of prison followed by forty (40) months of probation for count

one and a concurrent term of forty (40) months prison, followed by a concurrent

term of twelve (12) months of probation for count two. The sentence imposed was

a downward departure sentence to which the State objected.



1 The State filed two separate appeals in connection with Defendant’s sentences
which were imposed simultaneously and which were intended to run concurrently.
In case number 15-2876 the State appeals the sentence imposed in connection with
lower tribunal case number 2014-CF-890 (i. sale of cocaine within 1000 feet of a
convenience business on September 4, 2014 and ii. unlawful use of a two-way
communications device). In case number 15-2877 the State appeals the sentences
imposed in connection with lower tribunal number 2014-CF-891 (i. sale of cocaine
within 1000 feet of a convenience business on September 3, 2014 and ii. unlawful
use of a two-way communications device). We hereby consolidate Third District
case numbers 15-2876 and 15-2877 under case number 15-2876. We note that
because both sentences were imposed at the same time and were intended to be
served concurrently, there was no necessity for the filing of two separate cases and
we encourage the State to appeal simultaneous sentences as a single case in the
future.
                                         2
      The trial court’s written sentencing order states that the downward departure

was based on the fact that “Defendant has been granted a previous downward

departure based on a valid uncoerced plea agreement . . . [and] it would be

inappropriate, too harsh and contrary to the principles of graduated sanctions to

now sentence the Defendant to 73.65 months imprisonment which is the lowest

permissible prison sentence, absent a downward departure.”

      We conclude that the trial court’s reasoning does not amount to a valid legal

basis for the downward departure sentence imposed. See § 921.0026 Fla. Stat.

(2014); State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011); State v. Kasten, 775 So.

2d 992 (Fla. 3d DCA 2000); State v. Nolasco, 542 So. 2d 1052 (Fla. 3d DCA

1989).   Consequently, we reverse and remand for resentencing within the

sentencing guidelines.

      Reversed and remanded.




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