         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. 5D16-4373


HOWARD LEE HAWKINS, JR.,

             Appellee.

________________________________/

Opinion filed August 18, 2017

Appeal from the Circuit Court
for Osceola County,
A. James Craner, Judge.


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


No Appearance for Appellee.


PALMER, J.

      The State of Florida appeals two downward departure sentences imposed by the

trial court after Howard Hawkins, Jr. (the defendant) pled no contest in two unrelated

cases to resisting an officer with violence and petit theft with prior convictions. Because

the reasons provided for the departure sentences were legally invalid, we reverse.
       The resisting charge arose in connection with a traffic stop, during which the

defendant shoved two officers with his open palms. The petit theft charge arose roughly

eight months later when the defendant was confronted by a Lowe's employee as he was

exiting the store with a pressure washer for which he did not pay.

       The defendant entered an open plea of no contest to both charges. At the

sentencing hearing, defense counsel argued for downward departure sentences as to

both convictions.

       With regard to the resisting conviction, defense counsel argued, among other

things, that a departure was warranted on non-statutory grounds because one of the

officers involved did not recommend prison in his statement in the pre-sentence report

and the defendant did not injure the officers.

       Agreeing with defense counsel, the trial court ruled:

              I’m gonna find that . . . at least one victim . . . in this case
              announced to the writer of the [pre-sentence report] in this
              case, through the Department of Corrections, that he doesn’t
              think that further retribution is necessary under the
              circumstances.

              I’m also gonna consider the facts that it’s an open-hand push
              or shove for which, as I indicated before, nobody received
              any treatment, time off, workers’ comp payments or anything
              of that nature.

As for the petit theft charge, defense counsel argued that a valid non-statutory basis for

departure was as follows: the pressure washer never left the store and, as a

consequence, the store suffered no loss. The court ruled, “I’m not sure that that’s sufficient

. . . for me to find a non-statutory downward departure under the circumstances, but I will

do so . . . . ” Ultimately, the court sentenced the defendant to downward departure




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sentences of time served and two years of community control followed by two years of

probation on both counts. This appeal followed.

       “When analyzing a downward departure sentence, appellate courts must first

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)). "Whether there is a valid legal ground

is a question of law, to be reviewed de novo . . . . ” State v. Walker, 923 So. 2d 1262,

1264 (Fla. 1st DCA 2006).

       The State argues that the trial court’s reasons for imposing the downward

departures are legally invalid and, therefore, this court must reverse the two departure

sentences. We agree.

       “In Florida, sentencing for all non-capital offenses committed after October 1, 1998

is governed by the Criminal Punishment Code [(CPC)], enacted by the Florida Legislature

and contained in Chapter 921, Florida Statutes.” State v. Hodges, 151 So. 3d 531, 533

(Fla. 3d DCA 2014). The CPC requires that a scoresheet be prepared for "each

defendant, which takes into account and assesses points based upon, inter alia, the

severity of the defendant's primary offense at conviction, additional offenses at conviction,

prior criminal history[, and victim injury]." Id. (citing §§ 921.022-.024, Fla. Stat. (2012)).

The points assigned for these and other factors are then “added together and, after

additional calculations . . . , the resulting score (represented in months) establishes a

defendant's ‘lowest permissible sentence’ which ‘is assumed to be the lowest appropriate

sentence for the offender being sentenced.’” Id. (quoting § 921.00265(1), Fla. Stat.




                                              3
(2012)). Section 921.0026(2) contains a list of valid reasons, also called mitigating factors

or circumstances, supporting a downward departure from the lowest permissible

sentence. See State v. McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010). “The statutory

list of mitigating factors is not exclusive and the trial court may impose a downward

departure sentence for reasons not delineated in section 921.0026.” Id. (citations

omitted). In analyzing non-statutory mitigating circumstances, "a reviewing court must

consider the reasons given in light of the stated legislative sentencing policy." Id. (citations

omitted).

       Here, the trial court provided two reasons for departing from the lowest permissible

sentence on the resisting conviction: 1) one of the officers involved did not recommend a

prison sentence, and 2) neither of the officers involved were injured during the encounter.

       As to the first reason, we have held that a victim’s request for leniency is not a valid

reason for a departure sentence. See, e.g., State v. Ussery, 543 So. 2d 457, 457 (Fla.

5th DCA 1989); State v. White, 532 So. 2d 1083, 1084 (Fla. 5th DCA 1988). Accordingly,

the officer’s recommendation for a non-incarcerative sentence does not constitute a valid

reason for departure.

       Similarly, the second reason for departure, i.e., no injury to the two officers, is not

a legally valid reason for departure. A trial court may not downward depart based on facts

already considered when computing a defendant's lowest permissible sentence, such as

victim injury. Lee v. State, 42 Fla. L. Weekly D1273, D1279 (Fla. 1st DCA June 1, 2017);

accord State v. Chapman, 805 So. 2d 906, 908 (Fla. 2d DCA 2001). As such, the trial

court could not depart downward based on the officers’ lack of injury.




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       As for the petit theft conviction, the trial court departed downward based on the

fact that the defendant did not actually leave the store with the pressure washer. However,

merely committing an offense "less heinously" than other defendants is not a legally valid

ground to support a downward departure. State v. Subido, 925 So. 2d 1052, 1059 (Fla.

5th DCA 2006); see also State v. Lacey, 553 So. 2d 778, 779 (Fla. 4th DCA 1989) ("The

amount of the [theft] victim's loss is not a valid reason for departure." (citing Hankey v.

State, 485 So. 2d 827 (Fla. 1986))). Accordingly, the fact that the defendant did not

actually remove the pressure washer from the store is not a valid reason to downward

depart.

       Hence, the downward departure sentences are reversed. "On remand, the trial

court may again consider imposing a departure sentence if there are valid legal grounds

to support the departure sentence, and those legal grounds are supported by competent,

substantial evidence." Lee, 42 Fla. L. Weekly at D1279 (citing Jackson v. State, 64 So.

3d 90 (Fla. 2011)).


       REVERSED AND REMANDED.

COHEN, C.J., and EVANDER, J., concur.




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