       Third District Court of Appeal
                 State of Florida, July Term, A.D. 2013

                        Opinion filed November 12, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-779
                        Lower Tribunal No. 12-20046C
                            ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                               Albert Hodges,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler-
Mendez, Judge.

     Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellant.

     Carlos J. Martinez, Public Defender, and James Moody, Assistant Public
Defender, for appellee.

     Before WELLS, EMAS and LOGUE, JJ.

     EMAS, J.
      The State appeals from a downward departure sentence, imposed by the trial

court without timely filing its written reasons, and with oral reasons that we

determine to be invalid. We vacate the judgment and sentence and remand for

further proceedings consistent with this opinion.

      FACTS

      The relevant facts are not in dispute. Albert Hodges was arrested on August

10, 2012 and subsequently charged by information with three counts of possession

with intent to distribute cocaine and two counts of possession with intent to

distribute marijuana.

      Under the sentencing guidelines, Hodges’ lowest permissible sentence was

36.3 months in prison. Hodges also qualified as a habitual felony offender. At a

pretrial conference held by the trial court on March 19, 2013, the State and defense

were unable to reach a negotiated plea: the State’s final plea offer was 25 months

in prison followed by two years’ probation.         Hodges rejected this offer and

counteroffered with 18 months’ state prison. The State rejected this offer and

withdrew its original offer of 25 months. The trial judge, who acknowledged

knowing nothing about the case,1 offered Hodges 366 days in state prison. The

State objected to the offer as below the lowest permissible sentence under the

guidelines.

1The case was set for trial and it appears the judge below was a “backup judge”
who intended to preside over the trial in place of the assigned trial court judge.
                                           2
        The trial court nevertheless extended the year-and-a-day offer to Hodges,

and stated, as its sole reason for the downward departure, that Hodges scored so

high primarily because his prior criminal history included a ten-year-old arson

conviction.

          Hodges accepted the plea, was sentenced as an habitual offender to 366

days in state prison, and the trial court indicated it would enter an order setting

forth its reasons for the downward departure.

        The State filed its notice of appeal on March 20, 2013, the day following the

plea. The trial court did not enter a timely order setting forth its reasons for

departure, nor did it timely file a transcript of the plea and sentencing hearing.

More than a year after the State filed its notice of appeal, and after the State had

filed its initial brief in this appeal, Hodges filed a motion to correct a sentencing

error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).2 Thereafter, on

2   Rule 3.800(b)(2) provides:

        If an appeal is pending, a defendant or the state may file in the trial
        court a motion to correct a sentencing error. The motion may be filed
        by appellate counsel and must be served before the party’s first brief
        is served. A notice of pending motion to correct sentencing error shall
        be filed in the appellate court, which notice automatically shall extend
        the time for the filing of the brief until 10 days after the clerk of
        circuit court transmits the supplemental record under Florida Rule of
        Appellate Procedure 9.140(f)(6).

(Emphasis added.)

The motion to correct sentencing error was not filed before the initial brief was
                                       3
April 7, 2014, the trial court entered an order setting forth two reasons for its

downward departure:

      The guidelines scoresheet included criminal history points based upon
      a conviction more than ten (10) years ago. While Mr. Hodges has
      some criminal past, this Court does not believe that a guideline
      sentence is justified.
      [T]he police had the basis to effectuate an arrest of the Defendant after
      the completion of the first hand-to-hand drug purchase. Instead, the
      police continued to surveil the Defendant, and waited to effectuate
      their arrest of the defendant. This would, in effect, then enhance the
      potential penalties that Mr. Hodges faced. See State v. Steadman, 108
      So. 3d 1137 (Fla. 5th DCA 2013).3


      ANALYSIS

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

1998 is governed by the Criminal Punishment Code, enacted by the Florida

Legislature and contained in Chapter 921, Florida Statutes. See also Fla. R. Crim.

P. 3.704 (implementing, and providing procedural components for, the Criminal

Punishment Code).      Pursuant to section 921.0024(1)(a), Fla. Stat. (2012), a

scoresheet is 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, and prior criminal history.        See

served, and no notice of pending motion to correct sentencing error was filed with
this Court.
3 The correct citation for Steadman is 827 So. 2d 1022 (Fla. 3d DCA 2013). The
citation in the trial court’s order is to State v. Henderson, another downward
departure decision inapplicable to the facts at issue.
                                          4
generally, §§ 921.022-.024, Fla. Stat. (2012). A score is assigned to each primary

offense, additional offense, and prior criminal history. These points are added

together and, after additional calculations not relevant here, 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.” § 921.00265(1), Fla. Stat. (2012). The trial court may not impose a

sentence below the lowest permissible sentence unless there is a valid mitigating

circumstance to justify a downward departure. § 921.0026(1), Fla. Stat. (2012).

Section 921.0026(2) provides a non-exclusive list of mitigating circumstances for a

valid downward departure. While a trial court may depart for a reason other than

those set forth in section 921.0026(2), it may only do so if the articulated reason

for departure is consistent with legislative sentencing policies and is not otherwise

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

990 So. 2d 665 (Fla. 5th DCA 2008); State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA

2005).

      Rule 3.704 implements the legislatively-created sentencing guidelines, and

the statute and the rule each requires a court imposing a downward departure to

file, within seven days of the sentencing, either a written order or a copy of the

hearing transcript, setting forth the basis for the downward departure.       See §

921.00265(2); Fla. R. Crim. P. 3.704(d)(27)(A).4

                                         5
      There is no question that the trial court’s written order was untimely

rendered. The trial court’s order was filed more than one year after the sentence

was imposed. In fact, the order was filed after the time permitted under rule

3.800(b)(2) for a party to serve a motion to correct a sentencing error pending

appeal (“The motion [to correct a sentencing error]. . . must be served before the

party’s first brief is served”) (emphasis added). Because the motion to correct

sentencing error was served untimely, the order rendered thereafter was untimely,

and cannot be deemed valid under rule 3.704, rule 3.800(b)(2) or section

921.00265(2).5 See Miran v. State, 46 So. 3d 186 (Fla. 2d DCA 2010) (holding

that trial court acts without jurisdiction when entering an untimely order on

3.800(b)(2) motion, and the untimely order is deemed a nullity and must be

stricken).

      We are thus left with the oral reason announced by the trial court at the time

of sentencing. As counsel for Hodges correctly and commendably conceded on

appeal, the oral reason was an insufficient basis to justify a downward departure, as

we discuss in greater detail infra.




4 Rule 3.704(d)(27)(A) alternatively permits the sentencing judge to list the
departure reasons on the Criminal Punishment Code scoresheet.
5 As discussed infra, even if we were to base our decision on the merits of the

untimely written order, it failed to set forth any valid basis, supported by
competent substantial evidence, to justify the downward departure.
                                          6
      We therefore reverse the judgment and sentence, and remand this cause to

the trial court for further proceedings. On remand, under the circumstances of this

case, the trial court is not prohibited from again imposing a sentence that departs

below the lowest permissible guidelines. Jackson v. State, 64 So. 3d 90 (Fla.

2011).    However, the court may do so only if Hodges establishes by a

preponderance of the evidence that a valid departure reason exists and is supported

by competent substantial evidence.6      Because our remand permits the trial court,

if appropriate, to again consider a downward departure, we briefly address the

insufficiency or invalidity of the reasons relied upon by the trial court, in an effort

to avoid unnecessary litigation in any future proceedings in this case.

      The “remote” arson conviction

      At the time of sentencing, the trial court orally provided a single reason for

the downward departure: that Hodges’ “conviction for arson ten years ago” was the

“reason why you are scoring what you are scoring.”            The subsequently-filed

written order also indicated that, given the remoteness of this conviction, a

guidelines sentence was not justified.




6 If the trial court does not intend to impose a downward departure sentence, or
determines there are no valid reasons for a downward departure, the defendant may
elect to negotiate a plea with the State, enter an open plea to the court and be
sentenced pursuant to the Criminal Punishment Code, or withdraw his previously-
entered plea.
                                          7
      The remoteness of the prior conviction is not a valid basis for downward

departure, because the question of whether and the extent to which a trial court

may consider “remote” prior convictions has already been addressed by the

legislature in the Criminal Punishment Code. Specifically, section 921.0021(5)

provides a definition for “prior record” and sets forth the parameters under which a

remote conviction will not be scored under the Criminal Punishment Code. That

definition provides in relevant part as follows:

      “Prior record” means a conviction for a crime committed by the
      offender, as an adult or a juvenile, prior to the time of the primary
      offense. . . . Convictions for offenses committed by the offender more
      than 10 years before the primary offense are not included in the
      offender's prior record if the offender has not been convicted of any
      other crime for a period of 10 consecutive years from the most recent
      date of release from confinement, supervision, or sanction, whichever
      is later, to the date of the primary offense.

(Emphasis added.)

      Hodges’ prior arson conviction (as well as the accompanying burglary and

criminal mischief convictions) was properly included in his scoresheet because it

did not qualify as “remote” under the definition of prior record. The arson offense

was committed in 2003; the instant offenses were committed on August 10, 2012,

less than ten years later.7 For this reason alone, the arson could not properly be

characterized by the trial court as “remote,” as such a characterization would be

7 Further, the statute measures the ten-year period from the date the defendant is
released from serving any sentence for the original offense. Hodges was convicted
of the arson offense in May 2003 and sentenced to two years’ state prison.
                                         8
contrary to the legislative sentencing policy as expressed through the provisions of

the Criminal Punishment Code.

      Further, the statute provides that for a prior conviction to be excluded as

remote, the defendant must maintain a conviction-free record for the intervening

ten-year period. § 921.0021(5), Fla. Stat. (2012). The record reveals that, in the

nine-year interval between the 2003 arson and the 2012 instant offenses, Hodges

was convicted in 2006 for possession with intent to sell marijuana and in 2011 for

tampering with physical evidence.

      Because the Legislature has already determined how a defendant’s prior

criminal history is to be scored, and under what circumstances a prior record is too

remote to be included in a scoresheet calculation, the trial court was not permitted

to discount the properly-scored 2003 arson conviction as remote,8 or base a

downward departure on a determination that a properly-scored prior criminal

history results in a guidelines sentence that is unduly harsh. Bowman, 123 So. 3d

at 109-10; Knox, 990 So. 2d at 669; Ayers, 901 So. 2d at 946; State v. Lerman, 624

So. 2d 849 (Fla. 2d DCA 1993).


8 Indeed, it is clear that the trial court, in extending a plea offer of 366 days, did not
simply discount or exclude the points assessed for the prior arson. The record
shows that 14 points were assigned for this prior conviction. Even if the prior
arson (and the 14 points) were removed from Hodges’ scoresheet, the lowest
permissible sentence would have been 25.8 months, significantly higher than the
366–day downward departure sentence offered by the trial court.

                                            9
      Sentence manipulation

      The trial court’s written order contained an additional basis for downward

departure not stated orally at the time of sentencing: that the police engaged in

sentence manipulation, citing to Steadman v. State, 827 So. 2d 1022 (Fla. 3d DCA

2013). We conclude this reason was improperly included in the written order and

was not supported by competent substantial evidence.

      First, the issue of sentence manipulation was never raised at the time of the

plea and sentence. Neither defense counsel nor the trial court articulated such a

basis for the downward departure. This reason was expressed for the first time in a

written order entered more than a year after the sentence was imposed. Such an

after-the-fact finding is contrary to the principles established by the

contemporaneity requirement of departure sentencing and, as the Florida Supreme

Court has acknowledged in disapproving such a procedure, it can create the

impression that the trial court is attempting to justify a sentence that may otherwise

be subject to challenge. See e.g., Bryant v. State, 39 Fla. L. Weekly S591 (Fla. Oct.

9, 2014); State v. Collins, 985 So. 2d 985, 989 (Fla. 2008).

      Second, because this basis was never raised or articulated at the time of

sentencing as a basis for departure, the State was not given the opportunity at

sentencing to oppose or rebut it. The State was denied notice and an opportunity to

be heard at the sentencing on this purported basis for downward departure.9

                                         10
      Finally, there was no competent, substantial evidence presented at the

sentencing hearing to support the trial court’s conclusion that the police officers

engaged in sentence manipulation. The fact of the instant case appears to be a far

cry from those presented in Steadman, 827 So. 2d at 1023-24. The defendant in

Steadman was charged in six separate informations with six sales of cocaine to a

single undercover police officer, taking place on six separate dates over a period of

five weeks. All of the sales took place within 1000 feet of a middle school. The

first transaction took place on March 7, but the officers did not arrest Steadman at

that time. Instead the same officer made subsequent purchases from Steadman on

March 9, March 12, March 23, April 6 and April 12, before arresting him. The

officer supervising the operation candidly acknowledged that they “decided to

forego any arrest of Steadman until the police had made multiple purchases, in

order to generate enough quantity of cocaine to command a lengthy prison

sentence for Steadman.” Steadman, 827 So. 2d at 1024.              In a case of first

impression, this Court held that sentence manipulation may serve as a valid basis


9 Although the defense asserted, at oral argument, that the trial court held a rule
3.800 hearing (following the filing of the notice of appeal and the State’s service of
its initial brief) at which the State was given an opportunity to argue the issue of
sentence manipulation, we do not have, on the record before us, any transcript of
such a hearing. Moreover, such a hearing (and the order subsequently issued) was
untimely under rule 3.800(b)(2), given that the State had already filed its initial
brief on appeal. Further, an opportunity to make argument falls far short of proper
notice and an opportunity to present evidence to rebut the requisite evidentiary
showing by the defendant.
                                          11
for a downward departure, but provided guidelines for making such a fact-

intensive determination:

      When considering sentence manipulation as a basis for downward
      departure the trial court’s inquiry should focus on law enforcement
      intent: was the sting operation continued only to enhance the
      defendant’s sentence or did legitimate law enforcement reason exist to
      support the police conduct, such as to determine the extent of the
      criminal enterprise, to establish the defendant’s guilt beyond a
      reasonable doubt, or to uncover any co-conspirators? If legitimate
      law enforcement concerns exist, then a downward departure based on
      sentence manipulation is not warranted.

Id. at 1025.

      In the instant case, by contrast, the officers observed Hodges engage in three

hand-to-hand transactions over a period of approximately thirty minutes on a single

day. Hodges made each sale to a private individual, not an undercover officer or

confidential informant.    Each of the three purchasers was arrested by take-down

officers immediately after leaving the scene of the transaction. No testimony or

other evidence was presented at sentencing that the officers could have

immediately arrested Hodges following the first sale; that the officers intentionally

refrained from arresting him for the purpose of increasing the number of counts

and sentencing exposure; or that there were no legitimate law enforcement reasons

for not arresting Hodges immediately after the first sale. We are left merely to

speculate what reasons may have existed for the officers’ actions, because at the

sentencing the trial court did not articulate this as a basis for departure, and the

                                         12
State had no evidentiary opportunity to contest or rebut this determination.

Moreover, the burden of establishing the necessary facts to support a downward

departure is on the defendant. No evidence was presented at the sentencing to

sustain the burden for a downward departure based upon Steadman.10

       Reversed and remanded for proceedings consistent with this opinion.




10 We reject Hodges’ suggestion that the arrest form (which was a part of the court
file) could serve as a basis to support the downward departure. To the extent that
the arrest form is relevant, it appears to undermine, rather than support Hodges’
position that the police intended to manipulate his charges or sentences. Hodges
engaged in three separate transactions with three individuals (sale of cocaine to the
first individual; sale of cocaine and marijuana to the second individual; and sale of
cocaine and marijuana to the third individual). However, the arrest form charged
only a single count of sale of cocaine and a single count of sale of marijuana. This
would appear to belie any assertion that law enforcement intended to manipulate or
increase Hodges’ charges or sentence. Although the State Attorney’s Office
ultimately charged Hodges with three sales of cocaine and two sale of marijuana,
Steadman holds that the relevant inquiry focuses on the intent of law enforcement
at the time of the events leading to the arrest. Steadman 827 So. 2d at 1025.
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