                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                    NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-2017

RODNEY LARRY ROBINSON,

      Appellee.


_____________________________/

Opinion filed November 6, 2014.

An appeal from the Circuit Court for Hamilton County.
Andrew J. Decker, III, Judge.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender,
Tallahassee, for Appellee.




WETHERELL, J.

      The State appeals what amounts to a three year county jail sentence for two

first-degree felonies committed by an offender with a lengthy criminal record. The
State contends that the grounds relied upon by the trial court for this downward

departure sentence are not legally valid. We agree. Accordingly, we reverse and

remand for resentencing.

                      Factual and Procedural Background

      The appellee, Rodney Larry Robinson, sold $50 worth of crack cocaine to a

confidential source near a church in Jasper. He was arrested and charged with sale

of cocaine within 1,000 feet of a church (count 1) and possession of cocaine with the

intent to sell within 1,000 feet of a church (count 2).1 Robinson entered an open plea

of guilty to both counts. His Criminal Punishment Code (CPC) scoresheet included

three prior felony drug offenses – trafficking in cocaine, sale of cocaine, possession

of cocaine with the intent to sell – and a prior battery, and it reflected a lowest

permissible sentence of 60.75 months in state prison.

      Over the State’s objection, the trial court imposed a downward departure

sentence of 364 days in the county jail followed by 2 years of community control

and 3 years of probation with no credit for the nearly two years that Robinson had

served in the county jail since his arrest. The court did not provide written findings



1
    Robinson was also charged with violating his probation in a 2006 cocaine
trafficking case based upon these new law offenses. The record does not contain an
order disposing of the probation violation, but Robinson’s counsel represented at the
sentencing hearing that the parties “reached a resolution to basically just say his
probation was over” because there was apparently an issue as to whether Robinson’s
probation had been terminated.
                                          2
to support this downward departure; however, at the sentencing hearing, the court

explained its rationale for the sentence as follows:

             In considering an appropriate sentence, in this case, I think
             the Court has to be mindful of the legislative policy and
             the legislative intent, to -- to deal with this particular
             problem [of drug possession and sale], and the scourge of
             this problem, as it encroaches upon neighborhoods,
             churches, schools in such a way as to provide more serious
             damage and harm to the community than would be the
             normal case.

             At the same time, the Court has to be mindful of the
             provisions of chapter 921.0026 and the factors that have
             been presented here. It has been the Court’s observation
             since taking office that the disposition of cases in our
             circuit, especially in our county here, are really totally
             different from the way cases are handled in, let’s say Dade
             County or Hillsborough or Orange County.

             As a Judge, new to criminal matters, I’ve studied and
             poured over the advance sheets, and tried to keep up with
             every single reported case, so I understand better, not only
             the statutory provisions, but their applicability and the way
             in which they’re construed by trial courts and appellate
             courts. And if this were Dade County, it would not surprise
             me to see a sixty year sentence, for what Mr. Robinson has
             done.

             But we have a different community here, we are -- we live
             more, I guess, closer to each other and see each other on a
             daily basis and relate to each other in a community. . . .

             I think, in trying to weigh and balance, I don’t see that
             there’s any mitigating circumstances that would be
             warranted by any displays of remorse, because that has to
             be in a context of an isolated incident. When you have the
             prior matters that are noted here, and you have these two
             serious charges, and I would note that one of the previous
                                          3
            charges, trafficking in cocaine, that was a felony of the
            first-degree. And if I was arrested for trafficking in
            cocaine and told by my attorney that I would face thirty
            years, I think that would be all the isolated circumstance I
            would need to fly right. But in your case, it wasn’t, it just
            wasn’t.

            Since your arrest, well, since the incident for three years,
            you’ve not committed any crimes. The sheriff has
            indicated by the way he’s administered his jail, and the
            way he’s handled you, that he is confident in your behavior
            when you’re released. When you’re on work release, he’s
            indicated that he trusts that you will comply with the law,
            and not do anything to embarrass him. . . . He’s got to be
            awfully confident in you, and feel like you are deserving
            of this opportunity, this chance.

            You did step forward and candidly acknowledge your guilt
            and take responsibility for that by taking an open plea
            without any bargain, or any conditions. And I think that
            shows, together with other things I’ve noted, that you’re at
            a point in your life when you want to turn things around.
            You want to go down a different path, and you want to
            take responsibility for your actions and accept the
            consequences.

            The Court, in trying to weigh all these different factors,
            believes that -- and I’ve kind of backed myself into what
            I’m about to say, so I’ll try to explain what I’m doing. But
            in order to deal with and avoid any appellate issues on
            the Blockburger[2] issues or the McCloud[3] issues, I’m in
            my mind, mathematically, I’m treating the -- I’m
            accepting [defense counsel’s] argument on that point.[4]

2
   Blockburger v. United States, 284 U.S. 299 (1932).
3
   State v. McCloud, 577 So. 2d 939 (Fla. 1991).
4
   Earlier in the sentencing hearing, defense counsel argued that the 28 points for
the secondary offense of possession with the intent to sell should be removed from
Robinson’s scoresheet because it would violate double jeopardy to punish him for
both the possession and the sale of the same cocaine. The trial judge correctly
                                         4
             And that would reduce the minimum sentence permissible,
             to 39.75 months, based on my math. Because, if you take
             away that 28 points, for the other felony in the first-degree
             charge, then that would be -- that would bring you down,
             when you take 75% to 39.75. That is approximately 3.3
             years.

             Mr. Robinson has been in jail for two years. If his case had
             been tried promptly, and I don’t ascribe any fault or
             circumstance to it not being resolved sooner. Obviously,
             with discovery, with requests for continuances, with the
             change in prosecutor, with the Court’s own docket and
             own calendar issues that contribute to these matters, we
             are where we are. And we are resolving things as quickly
             as we can, but nevertheless, Mr. Robinson has kind of been
             in limbo. Normally, limbo’s for innocent souls, but we’ll
             put you in limbo for the sake of discussion. For about two
             years, and with the gain time of 15%, that would be about
             2.3 years.

      This appeal followed.

                                      Analysis

      Under the CPC, the lowest permissible sentence calculated in the offender’s

scoresheet is “the minimum sentence that may be imposed by the trial court, absent

a valid reason for departure.”      § 921.0024(2), Fla. Stat. (2011); see also §

921.00265(1), Fla. Stat. (2011) (“A departure sentence is prohibited unless there are

mitigating circumstances or factors present as provided in s. 921.0026 which would


rejected that argument based upon McCloud and ruled that “the scoresheet is correct,
as filed, based on the information to which Mr. Robinson pled.” The judge
reaffirmed that ruling at the conclusion of the sentencing hearing and explained that
he had only conceptually deducted the 28 points in his mind in order to “kind of back
into what [he] think[s] works.”
                                          5
reasonably justify a departure.”). The trial court “may impose a departure below the

lowest permissible sentence based upon circumstances or factors that reasonably

justify the mitigation of the sentence in accordance with s. 921.0026.” § 921.002(3),

Fla. Stat. (2011). The mitigating factors and circumstances that may be considered

by the trial court in determining whether to impose a downward departure sentence

“include, but are not limited to” those listed in section 921.0026(2). § 921.0026(1),

Fla. Stat. (2011); see also State v. Henderson, 108 So. 3d 1137, 1140 (Fla. 5th DCA

2013) (“The trial court can impose a downward departure sentence for reasons not

delineated in section 921.0026(2), so long as the reason given is supported by

competent, substantial evidence and is not otherwise prohibited.”); McCorvey v.

State, 872 So. 2d 395, 396 (Fla. 1st DCA 2004) (explaining that “the statutory

mitigating circumstances are not exclusive”).

      A trial court’s decision to depart from the lowest permissible sentence is a

two-step process: the trial court must first determine whether it can depart (step one)

and then it must determine whether it should depart (step two). See Banks v. State,

732 So. 2d 1065, 1067-68 (Fla. 1999). In step one, the trial court must determine

whether there is a valid legal ground for departure and adequate factual support for

that ground. Id. at 1067. In step two, the trial court must determine whether a

downward departure is the best sentencing option for the defendant. Id. at 1068.

      Here, the State contends that the trial court erred in step one because the non-

                                          6
statutory grounds relied on by the court for Robinson’s downward departure

sentence are not legally valid. We agree for the reasons that follow.

      First, the trial court’s observation that the disposition of criminal cases is

handled differently in Hamilton County than in other areas of the state is not a legally

valid reason for a downward departure. The CPC is a general law that applies

uniformly across the state irrespective of the nature and size of the community in

which the crime was committed. See § 921.002, Fla. Stat. (2011). Moreover, under

the rationale expressed by the trial court, downward departure sentences could

become the norm rather than the exception in Hamilton County and similar

locales. Cf. State v. Thompkins, 113 So. 3d 95, 100 (Fla. 5th DCA 2013) (reversing

downward departure sentence based upon trial court’s observation that the crime

was based upon “anger and stupidity” because those terms are not part of the lexicon

of the CPC, and explaining that “if trial courts are permitted to impose sentences

below the minimum guideline range based on their perception that a crime was

committed out of anger and stupidity, it would be difficult to find many cases that

would not qualify for a departure sentence, thus making departure the rule rather

than the exception”).

      Second, Robinson’s lack of criminal activity since his arrest for the charged

offenses is not a legally valid reason for departure. State v. Stephenson, 973 So. 2d

1259, 1264-65 (Fla. 5th DCA 2008) (“That a defendant refrains from criminal

                                           7
activity for a short time is an insufficient reason for a downward departure.”); see

also State v. Geoghagan, 27 So. 3d 111, 114 (Fla. 1st DCA 2009); State v. Nathan,

632 So. 2d 127, 128 (Fla. 1st DCA 1994). Moreover, to the extent the trial court’s

statements concerning the sheriff’s “confidence” in Robinson were intended to be

findings that Robinson is rehabilitated and poses no future threat or danger to

society, there is no competent substantial evidence to support such findings.

      Third, Robinson’s admission of guilt and entry of an open plea is not a legally

valid reason for departure. See Geoghagan, 27 So. 3d at 113. A defendant’s plea

only provides justification for downward departure when there has been a

“legitimate, uncoerced plea bargain” with the State. Id.; see also § 921.0026(2)(a),

Fla. Stat. (2011). No such plea bargain existed in this case.

      Fourth, the potential double jeopardy “issues” referenced by the trial court are

unfounded and do not provide a legally valid basis for the downward departure even

if (as the trial court and the parties appear to assume 5) the two charges against

Robinson are based upon the possession and sale of the same cocaine. See McCloud,


5
  The affidavit in support of the arrest warrant, which provided the factual basis for
the plea, suggests that the two charges against Robinson were not necessarily based
upon the same cocaine. The affidavit explains that Robinson “possessed a cigar bag
[sic] which appeared to be full of small bags of crack cocaine and he retrieved $50
of suspected crack from the box and sold it to the CS [confidential source]. He then
asked CS if they wanted to buy a full cookie.” Thus, it appears that count 1 (sale of
cocaine) may have been based upon the $50 of crack cocaine sold to the confidential
source and count 2 (possession of cocaine with the intent to sell) may have been
based upon the other small bags of crack cocaine in the cigar box.
                                          8
577 So. 2d at 939-40 (holding that double jeopardy does not prohibit dual

convictions for possession and sale of the same quantum cocaine); McMullen v.

State, 876 So. 2d 589, 590 (Fla. 5th DCA 2004) (holding that double jeopardy does

not preclude convictions for both sale and possession of the same cocaine within

1,000 feet of a church); see also Thomas v. State, 61 So. 3d 1157, 1158 (Fla. 1st

DCA 2011) (holding that double jeopardy does not preclude convictions for both

sale and possession of the same cocaine within 1,000 feet of a school).

      Finally, contrary to Robinson’s tipsy coachman argument on appeal, the

downward departure cannot be justified under State v. Steadman, 827 So. 2d 1022

(Fla. 3d DCA 2002), because there is no evidence of “sentence manipulation” in this

case. Indeed, unlike Steadman which involved a sting operation that continued for

over a month for no legitimate reason except to enhance the defendant’s sentencing

exposure, id. at 1025, this case involved a single drug sale.             Moreover,

unlike Steadman, the county jail sentence imposed by the trial court in this case was

well below the 39.75 month prison sentence that Robinson would have been subject

to if he had only been charged with count 1. See id. at 1025-26 (“We emphasize that

our holding is predicated on the fact that the sentence imposed did not go below what

Steadman would have received in the absence of the sentence manipulation.”).

                                    Conclusion

      In sum, for the reasons stated above, we reverse Robinson’s downward

                                         9
departure sentence and remand for resentencing. See Jackson v. State, 64 So. 3d 90,

93 (Fla. 2011).

      REVERSED and REMANDED for resentencing.

PADOVANO, J., CONCURS; SWANSON, J., CONCURS WITH OPINION.




                                        10
SWANSON, J., CONCURRING.

       I concur in the decision to reverse the trial court’s downward departure

sentence and to remand for resentencing. The trial court’s oral reasons for departing

from the lowest permissible sentence were either legally invalid or not based on

competent and substantial evidence in the record, as Judge Wetherell’s opinion

explains. I write to emphasize that on remand the law does not preclude the trial

court from imposing a downward departure sentence if it provides a legally valid

basis to do so which is supported by the record. As the Florida Supreme Court ruled

in Jackson v. State, 64 So. 3d 90 (Fla. 2011):

       Based on our reading of the legislative scheme, nothing within the
       [Criminal Punishment Code] precludes the imposition of a downward
       departure sentence on resentencing following remand. To be sure, if a
       trial court on remand resentences a defendant to a downward departure
       sentence, the trial court must ensure it comports with the principles and
       criteria prescribed by the Code. However, an appellate court should not
       preclude a trial court from resentencing a defendant to a downward
       departure if such a departure is supported by valid grounds.

Id. at 93.6


6
  Just recently, in Bryant v. State, 39 Fla. L. Weekly S591 (Fla. Oct. 9, 2014), the
Florida Supreme Court described Jackson as being a “narrowly tailored decision”
limited to instances where the trial court imposes a downward departure sentence
under the Criminal Punishment Code, which does not contemplate upward departure
sentences because, generally, the statutory maximum sentence is the highest possible
sentence for any crime. 39 Fla. L. Weekly at S593. In Bryant, however, the supreme
court reviewed the propriety of an upward departure sentence sanctioned by section
775.082(10), Florida Statutes, but which was imposed by the trial court without the
court’s making any written findings to support the upward departure. In such a case,
the supreme court ruled its earlier decisions in Pope v. State, 561 So. 2d 554 (Fla.
                                          11
1990), and Shull v. Duggar, 515 So. 2d 748 (Fla. 1987), still applied to preclude the
trial court, on remand, from again imposing a departure sentence.
                                        12
