       Third District Court of Appeal
                                State of Florida

                           Opinion filed March 16, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-2885
                         Lower Tribunal No. 13-15299C
                             ________________


                             The State of Florida,
                                     Appellant,

                                          vs.

                        Yanker Orlando Perez-Diaz,
                                     Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Dennis Murphy,
Judge.

     Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellant.

      Clayton R. Kaeiser, for appellee.


Before WELLS, ROTHENBERG, and EMAS, JJ.

      ROTHENBERG, J.
      The State of Florida appeals the downward departure sentence imposed by

the trial court in its effort to achieve sentencing parity between two co-defendants.

Because the record reflects that these two defendants were not similarly situated

and not equally culpable, we conclude that there is no legal basis to sustain the

downward departure sentence. Accordingly, we reverse the sentence and remand

for a resentencing of the defendant, Yanker Orlando Perez-Diaz.

      The operative facts are as follows.       Perez-Diaz, Mailin Robaina, and

Mailin’s brother, Jorge Robaina, were charged with various offenses stemming

from events that occurred during a house party they had attended. Because the

downward departure sentence was to achieve sentencing parity between the

defendant and his co-defendant, Mailin, we confine our discussion to these two

defendants.

      Had the defendants proceeded to trial, the State was prepared to present the

following evidence. While at a party, Perez-Diaz discovered that his wallet was

missing. Believing that someone at the party had stolen it, Perez-Diaz armed

himself with a machete, threatened to slice everyone up, ordered everyone into the

house, yelled at everyone to get down onto the floor and on their knees, and

demanded that they empty their pockets and place their valuables on a table. As

the party-goers emptied their pockets and Mailin and Perez-Diaz collected the

victims’ wallets, watches, and cell phones, Mailin and Perez-Diaz yelled at the



                                         2
victims, and Perez-Diaz threatened the victims with the machete. In addition to

threatening the victims with the machete, Perez-Diaz punched a female captive in

the face and struck another captive with the machete. The victims and witnesses

testified that although Mailin helped collect the victims’ property, Perez-Diaz was

the one in control. Perez-Diaz and Mailin then fled the scene in a car driven by

Mailin’s brother, and thereafter, Perez-Diaz attempted to make fraudulent

purchases with the stolen credit cards. Perez-Diaz was twenty-three years old

when he committed these crimes. All of the victims were teenagers under the age

of eighteen.

        Perez-Diaz, Mailin, and Mailin’s brother were all arrested and charged with

committing various crimes. Perez-Diaz and Mailin were charged with four counts

of armed robbery, one count of aggravated battery with a deadly weapon, one

count of aggravated assault with a deadly weapon, and one count of grand theft.

Perez-Diaz was also charged with one count of fraudulent use of a stolen credit

card.

        On May 20, 2014, Mailin entered into a negotiated plea with the State

wherein she agreed to plead guilty to the charges, provide a truthful statement

regarding the events on the night of the robberies and related crimes, and

“cooperate” with the State. In exchange for Mailin’s guilty plea and cooperation,




                                         3
she was sentenced to two years of community control followed by ten years of

probation.

      Thereafter, Perez-Diaz also pled guilty to the charges against him. This plea

was an open, non-negotiated plea.       According to the State, after scoring the

charged offenses and Perez-Diaz’s extensive prior criminal record, the lowest

permissible sentence which could be imposed under the Criminal Punishment

Code is 168.3 months which is approximately fourteen years in prison.1 Prior to

sentencing, the State announced that it was seeking a twenty-year sentence of

incarceration followed by five years of probation, and Perez-Diaz filed a motion

seeking a downward departure from the sentencing guidelines.

      After hearing from four of the victims, who confirmed the facts previously

articulated in this opinion; considering the State’s request for a twenty-year prison

sentence followed by five years of probation; and considering Perez-Diaz’s motion

for a downward departure from the sentencing guidelines, the trial court granted

Perez-Diaz’s motion and imposed a downward departure sentence of six years in

prison followed by six years of probation.

      Perez-Diaz offered two grounds in support of his motion for a downward

departure sentence: (1) the offenses were committed in an unsophisticated manner

and this was an isolated incident for which he has shown remorse, which is a

1Perez-Diaz contends that the lowest permissible sentence under the Criminal
Punishment Code is 163.2 months, or approximately thirteen years.

                                         4
statutory mitigating factor pursuant to section 921.0026(2)(j), Florida Statutes

(2013); and (2) Perez-Diaz “should be sentenced proportionately to Mailin

Robaina, an equally or more culpable co-defendant,” a non-statutory mitigating

factor. The trial court concluded that the record did not support a downward

departure based on the statutory mitigating factor set forth in section

921.0026(2)(j), but imposed a downward departure sentence based on a modified

version of Perez-Diaz’s second ground for a departure sentence. Because the trial

court did not depart from the sentencing guidelines on the first ground, and the

record reflects that the evidence does not support a downward departure on that

ground, we confine our analysis to the modified second ground relied on by the

trial court.

                                    ANALYSIS

       Section 921.0026(2), of the Florida Statutes (2013), sets forth a non-

exclusive list of mitigating circumstances for the imposition of a downward

departure sentence from the sentencing guidelines. Because the statutory list of

mitigating circumstances is expressly non-exhaustive, Florida courts have held that

a basis for a downward departure will be upheld if there is competent substantial

evidence to support the stated basis, so long as the purported basis for departure is

consistent with legislative sentencing policies and is not otherwise prohibited.

State v. Hodges, 151 So. 3d 531, 533 (Fla. 3d DCA 2014); State v. Bowman, 123



                                         5
So. 3d 107, 109 (Fla. 1st DCA 2013); State v. Knox, 990 So. 2d 665, 669 (Fla. 5th

DCA 2008).

      Perez-Diaz sought a downward departure sentence based on the recognized

non-statutory ground that a reduction of a defendant’s sentence is proper in order

to provide parity with the sentence of a co-defendant who was at least, if not more,

culpable than the defendant. See Sanders v. State, 510 So. 2d 296, 298 (Fla.

1987); State v. Fernandez, 927 So. 2d 939, 941 (Fla. 3d DCA 2006). Perez-Diaz’s

argument was based on the false premise that because Mailin was an active

participant in the robberies and he and Mailin were co-defendants, and thus both

principles to the crimes committed at the party, they were equally culpable.

However, culpability for sentencing purposes is not determined solely based on a

review of the charging document. As the Florida Supreme Court stated in Sanders,

the validity of a departure sentence based on equal culpability must be decided on

the facts and circumstances of the case. Sanders, 510 So. 2d at 298.

      A review of the record in this case reflects that Perez-Diaz and Mailin were

not equally culpable and were not similarly situated. The victims testified that it

was Perez-Diaz, not Mailin, who threatened them with a machete, ordered them

into the house, and screamed at them to get onto their knees while swinging the

machete, and ordered them to empty their pockets and place their wallets, watches,

and cell phones on the table. Perez-Diaz not only threatened and terrorized these



                                         6
teenagers, he punched one of the girls in the face with his fist and hit at least one of

the other minors with the machete. Although Mailin helped collect the victims’

valuables, it is undisputed that she was unarmed and did not personally strike

anyone. The deadly force and non-deadly force directed at the victims all came

from Perez-Diaz, and the victims testified that Perez-Diaz was the one in control.

The record also reflects that Perez-Diaz was charged with and pled to an offense

that Mailin was not charged with—fraudulent use of a credit card, which was

based on Perez-Diaz’s attempt to use a credit card stolen from one of the victims.

Thus, the record does not contain competent substantial evidence that Perez-Diaz

and Mailin were equally culpable. Perez-Diaz, by any standard, was by far the

more culpable defendant.

      Perez-Diaz and Mailin were also not similarly situated. Perez-Diaz has an

extensive criminal record. He had twenty-four prior misdemeanor and two prior

felony convictions. Many of these offenses were as a result of domestic violence

against the mother of his children. The State also presented evidence that after

Perez-Diaz was released from custody pending trial on the charges in the instant

case, he was re-arrested on yet another act of domestic violence and was returned

to custody. In contrast, there was no evidence presented that Mailin has had any

prior contact with the system, and Mailin entered into a negotiated plea wherein

she agreed to cooperate with the State.



                                           7
      Based on this record, it is clear that Perez-Diaz and Mailin were not equally

culpable and were not similarly situated. We therefore find that a downward

departure sentence imposed to provide sentencing parity with a co-defendant who

was at least, if not more culpable, than Perez-Diaz is not supported by competent

substantial evidence.

      Perhaps recognizing that the evidence did not support a finding that these

two defendants were equally culpable, the trial court departed downward from the

sentencing guidelines based on its finding that Perez-Diaz and Mailin were

“comparatively culpable,” and that the Florida Supreme Court’s proportionality

analysis in death penalty cases “should be utilized in all cases.” This was error.

      First, as the Florida Supreme Court has consistently stated: “death is

different.” Ocha v. State, 826 So. 2d 956, 964 (Fla. 2002) (“This Court has long

adhered to the idea that ‘[I]n the field of criminal law, there is no doubt that ‘death

is different[.]’”) (quoting Hamblen v. State, 527 So. 2d 800, 804 (Fla. 1988)). And

the differences that are applicable to our analysis are obvious.            The only

permissible sentences under Florida’s current statutory scheme for an adult who

commits first degree murder is life in prison without the possibility of parole, or

death. Mitigation of a first degree murder sentence is not permitted. § 921.0026,

Fla. Stat. (2013) (providing that section 921.0026 does not apply to any capital

felony). Section 921.0026, which permits the imposition of a downward departure



                                          8
sentence under certain circumstances, does not apply to first degree murder

convictions because the sentence for a first degree murder conviction of an adult

may not be mitigated.       It may only be aggravated to a sentence of death.

Aggravation of the sentence to a sentence of death may only be imposed after

consideration of all of the aggravating and mitigating circumstances and after a

finding that the aggravating circumstances outweigh the mitigating circumstances.

A proportionality analysis is only performed after a finding is made that the

aggravating circumstances outweigh the mitigating circumstances.                Thus,

proportionality in a death penalty case is the last step in the sentencing analysis

when determining whether the sentence should be aggravated to a sentence of

death. In essence, it is the last line of defense against aggravation of a life

sentence to a sentence of death.

      Second, as the Florida Supreme Court has long held, a “proportionality

review requires a ‘discrete analysis of the facts, entailing a qualitative review by

this Court of the underlying basis for each aggravator and mitigator rather than a

quantitative analysis.’” Ocha v. State, 826 So. 2d at 965-96 (quoting Urbin v.

State, 714 So. 2d 411, 416 (Fla. 1998)). See also Silvia v. State, 60 So. 3d 959,

974 (Fla. 2011) (holding that a proportionality analysis entails a qualitative, rather

than a quantitative, review of the aggravating and mitigating circumstances).

Thus, under a proportionality analysis, the trial court would have been required to



                                          9
review the facts and circumstances regarding the offenses committed, not just the

crimes that were charged, as well as all of the aggravating and mitigating

circumstances, which obviously would have included Perez-Diaz’s lengthy

criminal record and Mailin’s cooperation with the State. Moreover, proportionality

reviews are conducted in death penalty cases because the death penalty is

“reserved only for those cases where the most aggravating and least mitigating

circumstances exist.” Terry v. State, 668 So. 2d 954, 965 (Fla. 1996). Thus, when

deciding whether death is a proportionate penalty, the Court must perform a

“comprehensive analysis in order to determine whether the crime falls within the

category of both the most aggravated and the least mitigated of murders, thereby

assuring uniformity in the application of the sentence.” Silvia v. State, 60 So. 3d at

974 (internal quotation and citation omitted). “Accordingly, the Court considers

the totality of the circumstances and compares the case with other similar capital

cases. Id.

      Proportionality cannot serve as a basis for a downward departure where co-

defendants are not equally culpable. Rather, it may become a consideration after a

trial court has concluded that the co-defendant is at least as culpable or more

culpable as the defendant being sentenced and therefore it may depart downward

from the sentencing guidelines, and the court proceeds to the next step, which is to




                                         10
then determine whether it should depart, and if so, what would be an appropriate

sentence based on the aggravating and mitigating circumstances.

      Third, the Florida Supreme Court has specifically limited application of a

proportionality analysis when considering whether to impose a downward

departure sentence from the sentencing guidelines to those situations where the co-

defendant was at least or more culpable than the defendant being sentenced. The

Florida Supreme Court unequivocally stated in Sanders that “the judge would

only be justified in departing downward to meet a codefendant’s sentence if

the record established beyond a reasonable doubt that the culpability of the

defendant was no greater than that of the codefendant.” 510 So. 2d at 298

(emphasis added).

                                 CONCLUSION

      Although we agree that authority exists to support the general proposition

that co-defendants should not be treated differently on same or similar facts, see

Slater v. State, 316 So. 2d 539 (Fla. 1975); Fernandez, 927 So. 2d at 941

(confirming that consideration of a co-defendant’s downward departure sentence

“is a legally sufficient reason to support a decision to consider a downward

departure sentence”), a downward departure to achieve parity with a co-

defendant’s sentence is justified “only . . . if the record establishe[s] beyond a




                                        11
reasonable doubt that the culpability of the defendant was no greater than that of

the codefendant.” Sanders, 510 So. 2d at 298.

      The record reveals the opposite to be true.        Perez-Diaz was far more

culpable than Mailin. Perez-Diaz is the only one who armed himself with a deadly

weapon (a machete); ordered the victims into the house and onto their knees;

demanded the victims empty their pockets and give up their property; threatened

the victims with a machete; and used actual force by punching a minor female

victim in the face with his fist and striking a minor male victim with the machete.

Perez-Diaz also attempted to use a credit card stolen from one of the victims.

      The victims testified that Diaz-Perez was the one in control, and the

evidence reflects that Mailin merely assisted Perez-Diaz by screaming at the

victims and collecting their property into a bag. She did not threaten any of the

party-goers; carry, threaten, or use a weapon; or physically harm any of the

victims. Mailin was also not charged with, nor was there any evidence introduced

that Mailin attempted to use any of the credit cards stolen from the victims.

      Additionally, whereas Perez-Diaz had a long list of criminal convictions,

many of which involved acts of violence, and a new arrest during the pendency of

the instant case, there was no evidence that Mailin had any prior contacts with the

criminal system. And Perez-Diaz’s plea may very well have been motivated by

Mailin’s earlier negotiated plea wherein she agreed to cooperate with the State.



                                         12
      Because there is no competent substantial evidence to establish that Perez-

Diaz’s culpability was no greater than Mailin’s and that he was similarly situated,

nor any legal ground or competent substantial evidence to support a downward

departure that the two were “comparatively culpable,” we reverse and remand for

sentencing under the sentencing guidelines.

      Reversed and remanded.




                                 State of Florida v. Yanker Orlando Perez-Diaz
                                                                    3D14-2885


      EMAS, J., concurring.

      I concur fully, but write separately to address more broadly one of the points

made in the majority opinion.

      The trial court imposed a downward departure sentence, concluding that the

departure was necessary to achieve “sentencing parity” and to correct what the

court perceived to be a “gross disparity” between Perez-Diaz’s guideline sentence



                                        13
and the negotiated sentence imposed on the co-defendant. I conclude that, given

the circumstances of the instant case, this is not a permissible basis for a downward

departure.

      As the majority opinion notes, a trial court does have the discretion, under

proper circumstances and an adequate showing, to match the sentences of two

defendants where the previously-sentenced co-defendant is at least equally as

culpable as the defendant being sentenced. See, e.g., Sanders v. State, 510 So. 2d

296, 298 (Fla. 1987) (holding trial court, in determining proper sentence of a

defendant, may validly consider co-defendant’s below-guideline sentence, where

the co-defendant is “at least, if not more, culpable than defendant”); State v.

Fernandez, 927 So. 2d 939 (Fla. 3d DCA 2006); Marsh v. State, 546 So. 2d 33

(Fla. 3d DCA 1989).

      However, Perez-Diaz asks this court to extend the rationale of Sanders to a

fundamentally different set of circumstances: even if the co-defendant was not

“equally as culpable” as Perez-Diaz, the trial court can still validly impose a

downward departure sentence upon Perez-Diaz because of the “gross disparity” in

the sentences, given the proportionate (though unequal) culpability of the two

defendants. In other words, Perez-Diaz appears to argue, even if he was more

culpable than his co-defendant, the gross disparity between his minimum

guidelines sentence and the negotiated sentence imposed on the less-culpable co-



                                         14
defendant does not fairly reflect the relative culpability of the two defendants, and

the trial court should have the discretion to depart downward on Perez-Diaz’s

sentence to produce a more equitable sentence.

      Although there does not appear to be any case law in Florida on this precise

issue, I conclude this is not a permissible basis for departure under our existing

statutory sentencing scheme. Section 921.0026, Florida Statutes (2013), entitled

“Mitigating Circumstances,” is a part of Florida’s Criminal Punishment Code. It

establishes guidelines for imposing downward departure sentences, and provides a

non-exhaustive list of circumstances under which a downward departure may

lawfully be imposed. This section provides in pertinent part:

      (1) A downward departure from the lowest permissible sentence, as
          calculated according to the total sentence points pursuant to s.
          921.0024, is prohibited unless there are circumstances or factors
          that reasonably justify the downward departure. Mitigating factors
          to be considered include, but are not limited to, those listed in
          subsection (2). The imposition of a sentence below the lowest
          permissible sentence is subject to appellate review under chapter
          924, but the extent of downward departure is not subject to
          appellate review.

§ 921.0026, Fla. Stat. (2013) (Emphasis added).

      Because the statutory list of mitigating circumstances is expressly non-

exhaustive, Florida courts have held that a basis for downward departure will be

upheld if there is competent substantial evidence to support the stated basis, so

long as the purported basis for departure is consistent with legislative sentencing



                                         15
policies and is not otherwise prohibited. State v. Hodges, 151 So. 3d 531 (Fla. 3d

DCA 2014); State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013); State v. Knox,

990 So. 2d 665 (Fla. 5th DCA 2008).

      I do not believe the concept of correcting an alleged “gross disparity” in the

sentences imposed upon co-defendants of unequal culpability can constitute a valid

basis for departure under the Criminal Punishment Code. The reason is simple: the

only way in which one can determine if this is a valid basis for departure is by

comparing the actual sentences imposed upon the two defendants. In other words,

this basis for departure is premised on the contention that the downward departure

sentence ameliorates the “gross disparity” and properly reflects the “relative

culpability” of the co-defendants. But this can only be determined by reviewing

the downward departure sentence ultimately imposed by the trial court. However,

section 921.0026(1) expressly provides that “the extent of the downward departure

is not subject to appellate review.” Because the statute prohibits appellate review

of the extent of the downward departure, any purported basis for downward

departure whose very validity requires a review of the extent of the departure is

inconsistent with the legislative sentencing policies and cannot serve as a

permissible basis for departure.

      If in fact the trial court decided to impose a downward departure sentence on

Perez-Diaz in order to correct the “gross disparity” in the defendants’ sentences



                                        16
(relative to their unequal culpability) and to achieve “sentencing parity,” an

appellate court would necessarily have to consider the sentence imposed by the

trial court upon Perez-Diaz (i.e., “the extent of the downward departure”). How

else could an appellate court determine whether the basis for a downward

departure was valid (i.e., achieving sentencing parity between co-defendants with

admittedly different levels culpability)? Yet such review by an appellate court is

expressly prohibited by section 921.0026(1).

      If we were to permit such a concept to serve as a valid basis for downward

departure, the only determination this court could make is to review the record to

determine that the co-defendants had relatively different levels of culpability. But

because we are prohibited from reviewing the extent of the downward departure

itself, a trial court would be free to impose the exact same sentence on co-

defendants of unequal culpability, and the State would not have the right, nor this

court the authority, to review such a sentence.

      By contrast, where the basis for departure is that a co-defendant who has

already been sentenced was at least as equally culpable as the defendant, there is

no need for the court to review the extent of the departure. Assuming that there is

competent substantial evidence to establish that the defendants were equally

culpable (or that the previously sentenced co-defendant was more culpable than the

defendant) the trial court has the discretion to impose a sentence that “matches” the



                                         17
already sentenced co-defendant. Sanders, 510 So. 2d at 298. There is no need,

upon appeal, for this court to review the ultimate sentence imposed on the

defendant; our task is limited to determining whether the evidence supports the

trial court’s determination of equal culpability. If this requirement is met, the trial

court may validly impose a downward departure sentence equal to (or less than)

that imposed on the co-defendant, since the co-defendant was equally or more

culpable than the defendant.

      However, the rationale of Sanders is inapplicable to the circumstances of the

instant case. The concept of correcting a perceived disparity in sentences of

defendants with unequal culpability—the more amorphous concept of somehow

adjusting the disparate sentences of co-defendants to more accurately reflect their

relative (but unequal) levels of culpability— is incapable of review without

actually considering the extent of the downward departure sentence imposed.

      Take the instant case for example.          It is clear that Perez-Diaz was

significantly more culpable than his co-defendant. Perez-Diaz was the only one

who brandished a machete; he was the only one who struck a victim of the robbery

(Perez-Diaz actually struck two of the victims); and he was the only one who made

direct threats to the victims in order to achieve the objective of the robbery. Given

this clear and significant disparity in culpability between Perez-Diaz and his co-

defendant, how can one say that Perez-Diaz’s minimum sentence under the



                                          18
guidelines (approximately 13 years) is “grossly disproportionate” to the below-

guidelines sentence of a less culpable co-defendant?2

      More to the point, even if such a finding could be made, how can this court

determine whether the ultimate downward departure sentence imposed on Perez-

Diaz achieves “sentencing parity” or corrects this “gross disparity” without

actually reviewing the extent of Perez-Diaz’s downward departure sentence? If, as

the statute provides, “the extent of the downward departure is not subject to

appellate review,” then the trial court in this case, after making a finding that a

downward departure was necessary to correct a gross disparity in sentences of co-

defendants with unequal culpability, could have theoretically imposed the very

same sentence it imposed on the co-defendant (or, presumably could impose an

even lower sentence on the more-culpable defendant), and such a sentence would

not be reviewable by this court under the express language of section 921.0026(1).

But it would nonetheless be a patently improper sentence given the fact that the co-

defendants were not equally culpable.

      I therefore conclude that the concept of achieving “sentencing parity” or

correcting a “gross disparity” in the sentence of a defendant who is more culpable

2 In addition to the fact that Perez-Diaz was the more culpable defendant, the
downward departure sentence of co-defendant was the result of a negotiated plea
by which the co-defendant agreed to cooperate in the continued prosecution of
Perez-Diaz, providing additional reasons for any asserted “disparity” between the
co-defendant’s downward departure sentence and Perez-Diaz’s minimum
guidelines sentence.

                                        19
than the previously-sentenced co-defendant is not a permissible basis for

downward departure. The validity of such a purported basis necessarily requires a

review of the extent of the downward departure. Because the review of the extent

of the downward departure is prohibited under section 921.0026(1), this asserted

basis for departure is incompatible with the legislative sentencing policies of the

Criminal Punishment Code and is therefore impermissible.




                                        20
