         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-661
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JOSEPH WILLIAMS,

    Appellant/Cross-Appellee,

    v.

STATE OF FLORIDA,

    Appellee/Cross-Appellant.
                _____________________________


On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.

                       September 25, 2019


KELSEY, J.

     Appellant challenges his judgment and sentence for
tampering with a witness in the investigation of a first-degree
felony punishable by life. The State also appealed, challenging the
trial court’s imposition of a downward-departure sentence. We
consolidated the two appeals for all purposes. The first issue is a
purely legal question of statutory interpretation: whether the
witness-tampering statute, section 914.22(3) of the Florida
Statutes, requires felony-level sentencing if the tampering
occurred while a felony was charged and investigated, even if a
jury later convicts of a lower-level crime. The second issue is
whether the trial court properly imposed a downward-departure
sentence. We have carefully considered all of Appellant’s
arguments, finding them without merit. We write to address
Appellant’s incorrect interpretation of the witness-tampering
statute, and the trial court’s improper downward departure. We
affirm Appellant’s convictions, and reverse and remand for
resentencing on the witness-tampering conviction.

     The facts were largely undisputed. Appellant had been in a
physical relationship with two women who themselves were in a
relationship and wanted to have a baby. An incident occurred in
which Appellant entered the first woman’s residence, with the
second woman also present; then he punched the first woman in
the side of the head; and had an altercation with the second
woman, including punching her in the face, as she tried to force
him out.

    The State charged Appellant with two counts of burglary with
assault or battery, a first-degree felony punishable by life (later
dropping the second burglary charge since there was only one
entry). While Appellant was incarcerated before trial, he
persuaded a friend to contact the first victim and try to get her to
drop the charges. The State then charged Appellant with
harassing or tampering with a witness in a first-degree felony
investigation.

     At trial, Appellant’s defense to the burglary charge was that
he had permission to enter the first victim’s residence. After the
jury began deliberations, defense counsel asked the trial court to
add jury instructions for lesser-included offenses on the tampering
charge in the event the jury concluded that Appellant had not
committed a felony. The trial court declined to do so. The jury
convicted Appellant of one count of misdemeanor battery, and
found him guilty as charged of felony witness tampering.

     At sentencing, defense counsel requested a downward
departure to reflect that although the witness-tampering charge
arose during the investigation or prosecution of a charged felony,
the jury had deemed the underlying act a misdemeanor, which the
defense argued should relate back to reduce the level of the
tampering crime charged. The State disagreed with the defense’s
statutory analysis, and requested an 86.1-month sentence, which
was the bottom of the guidelines. The trial court commented orally
that the recommended punishment “doesn’t really fit the crime
here, because of the issues I raised regarding conflicts in the
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evidence and the testimony from [the second victim].” The court
imposed a downward-departure sentence of three years, with 161
days’ credit for time served. The court provided the following
written reasons for the downward-departure sentence:

         Based on the evidence presented at trial, as opposed
    to the evidence alleged in the probable cause affidavit,
    Defendant should have been charged with Domestic
    Battery on [first victim]. While there is no statutory basis
    for departing from the minimum sentence reflected in the
    sentencing guidelines, the facts of this case do not support
    the ultimate sentence. Justice would not be served by
    sentencing this Defendant as though he was properly
    charged with a Life Felony of Burglary with a Person
    Assaulted when in fact the underlying facts as found by
    the Jury supported, at best, a charge of Domestic Battery.

     We reject Appellant’s argument that the witness-tampering
conviction should have been reduced to a misdemeanor to reflect
the misdemeanor battery verdict. This argument is contrary to the
plain language of the statute, which equates the level of the
tampering offense with the level of the crime charged during the
investigation. We also find that the trial court improperly entered
a downward-departure sentence. We address the two issues in
turn.

    1. Witness-Tampering Statute.

     Florida’s witness-tampering statute, section 914.22(3), first
defines the crime and then sets forth different levels of offense
depending on the level of underlying crime being investigated or
prosecuted, as follows:

         914.22 Tampering with or harassing a witness,
    victim, or informant; penalties.—

         (1) A person who knowingly uses intimidation or
    physical force, or threatens another person, or attempts
    to do so, or engages in misleading conduct toward another
    person, or offers pecuniary benefit or gain to another
    person, with intent to cause or induce any person to:


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     (a) Withhold testimony, or withhold a record,
document, or other object, from an official investigation
or official proceeding;

     (b) Alter, destroy, mutilate, or conceal an object
with intent to impair the integrity or availability of the
object for use in an official investigation or official
proceeding;

    (c) Evade legal process summoning that person to
appear as a witness, or to produce a record, document, or
other object, in an official investigation or an official
proceeding;

    (d) Be absent from an official proceeding to which
such person has been summoned by legal process;

     (e) Hinder, delay, or prevent the communication to
a law enforcement officer or judge of information relating
to the commission or possible commission of an offense or
a violation of a condition of probation, parole, or release
pending a judicial proceeding; or

     (f) Testify untruthfully in an official investigation
or an official proceeding,

     commits the crime of tampering with a witness,
victim, or informant.

        (2) Tampering with a witness, victim, or informant
is a:

    (a) Felony of the third degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084, where
the official investigation or official proceeding affected
involves the investigation or prosecution of a
misdemeanor.

      (b) Felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s.775.084, where the
official investigation or official proceeding affected


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    involves the investigation or prosecution of a third degree
    felony.

        (c) Felony of the first degree, punishable as
    provided in s. 775.082, s. 775.083, or s. 775.084, where
    the official investigation or official proceeding affected
    involves the investigation or prosecution of a second
    degree felony.

         (d) Felony of the first degree, punishable by a term
    of years not exceeding life or as provided in s. 775.082,
    s. 775.083, or s. 775.084, where the official investigation
    or official proceeding affected involves the investigation
    or prosecution of a first degree felony or a first degree
    felony punishable by a term of years not exceeding life.

         (e) Life felony, punishable as provided in
    s. 775.082, s. 775.083, or s. 775.084, where the official
    investigation or official proceeding affected involves the
    investigation or prosecution of a life or capital felony.

          (f) Felony of the third degree, punishable as
    provided in s. 775.082, s. 775.083, or s. 775.084, where
    the offense level of the affected official investigation or
    official proceeding is indeterminable or where the
    affected official investigation or official proceeding
    involves a noncriminal investigation or proceeding.

     The State charged Appellant with burglary with a battery or
assault, which is a first-degree felony punishable by life.
§ 810.02(2)(a), Fla. Stat. Therefore, the governing provision of
section 914.22(3) was subsection (e), making the witness
tampering a life felony because “the official investigation or official
proceeding affected [the charge of burglary with battery or assault]
involves the investigation or prosecution of a life or capital felony.”
The statute is clear and unambiguous. We are required to construe
it according to its plain meaning. Weber v. Dobbins, 616 So. 2d 956,
958 (Fla.1993) (“The cardinal rule of statutory construction is that
the courts will give a statute its plain and ordinary meaning.”).
The statute quite plainly sets the punishment for witness
tampering according to the level of the offense being investigated
or prosecuted. No part of the statute provides for a different result
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if a defendant is ultimately not convicted of the level of offense
being investigated or prosecuted, and we will not inject such a
result into the statute.

     Appellant argues that the plain meaning of the statute caused
an inconsistent verdict, where the jury acquitted Appellant of a
felony but convicted him of felony-level witness tampering. This
argument fails. As plainly written, the statute defines the offense
level of the tampering within the context in which it occurs—
during the investigation or prosecution. The crime of witness
tampering during investigation or prosecution has the potential to
subvert the search for truth. The ultimate conviction or acquittal
of the underlying charged crime is independent of the damage
tampering can do during investigation and prosecution. Successful
witness tampering, if undetected, could result in an improper
acquittal or conviction of a lower-level crime. Witness tampering
is a crime independent of the crimes being prosecuted, and the
ramifications of witness tampering are so fundamental to the
search for truth and justice that there is no logical or legal reason
the punishment for tampering should depend on the later outcome
at trial for the underlying offenses. This does not produce an
inconsistent verdict. More to the point, the Legislature did not
provide for any such adjustment to the offense level of witness
tampering in light of the ultimate verdict, and we are not at liberty
to add it to this clear and unambiguous statute.

    2. Downward Departure.

    The trial court’s oral comments and written grounds for
entering a downward-departure sentence both indicate that the
court disagreed with the guidelines sentence because of his view of
the conflicts in the evidence and his view that Appellant should
have been charged only with domestic battery. These were invalid
reasons for departure, rendering the sentence invalid.

     As a general rule, downward departure is discouraged
“because the first purpose of sentencing is to punish . . . .” State v.
McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010). A downward
departure sentence is nevertheless permitted if there are
“circumstances or factors that reasonably justify the downward
departure.” § 921.0026(1), Fla. Stat. The statute lists some valid
grounds for departure, and trial courts are authorized to depart
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downward for other legally valid reasons supported by the record.
See State v. Chandler, 668 So. 2d 1087, 1088 (Fla. 1st DCA 1996)
(holding that a single valid reason can support a departure
sentence if supported by the record); State v. Turro, 724 So. 2d
1216, 1217 (Fla. 3d DCA 1998) (recognizing nonstatutory grounds
for departure are permissible if valid and supported by the record).

     Confronted with a downward-departure sentence, we analyze
three issues: whether the trial court had a valid reason to depart;
whether competent, substantial evidence supports the reason; and
whether departure is the best sentencing option for the defendant.
See Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). On the facts
presented, we need go no further than the first factor, which we
review de novo. See id.

     The trial court here acknowledged that there was no statutory
basis to depart from the sentencing guidelines, but nevertheless
expressed his view that there were conflicts in the evidence and in
the second victim’s testimony, and that “the facts of this case do
not support the ultimate sentence. Justice would not be served by
sentencing this Defendant as though he was properly charged with
a Life Felony of Burglary with a Person Assaulted when in fact the
underlying facts as found by the Jury supported, at best, a charge
of Domestic Battery.” As a matter of law, a trial court’s personal
view of the evidence and a defendant’s guilt are not legally valid
reasons for a downward departure. State v. Wright, 473 So. 2d 268,
271 (Fla. 1st DCA 1985); see also State v. McMullen, 529 So. 2d
821, 822 (Fla. 3d DCA 1988) (holding that a trial court’s statement
that the facts did not support the recommended sentence were
mere “judicial dissatisfaction” and legally insufficient grounds to
depart); State v. Joiner, 498 So. 2d 1017, 1018 (Fla. 5th DCA 1986)
(holding a judge’s view of victim credibility does not provide a valid
reason for departure). Because the trial court failed to articulate a
valid legal basis for departure, we reverse the sentence. Although
the State requests that resentencing occur before a different judge,
we are not aware of any reason or precedent for such a requirement
in this context, and decline to impose it.

   We affirm Appellant’s convictions and judgment, reverse the
downward-departure sentence, and remand for resentencing.

    AFFIRMED in part, REVERSED in part, and REMANDED.
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ROBERTS and ROWE, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender; and John Knowles and David
Henson, Assistant Public Defenders, Tallahassee, for
Appellant/Cross-Appellee.

Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee/Cross-
Appellant.




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