          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. 5D14-4346

ALGINAVON TERIANO CLEVELAND,

              Appellee.

________________________________/

Opinion filed February 26, 2016

Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and     Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellant.

Denise VanNess, of VanNess & VanNess,
P.A., Crystal River, for Appellee.


PER CURIAM.

      The State of Florida appeals the downward departure sentences imposed upon

Alginavon T. Cleveland following his pleas of no contest in two separate cases1 to the

charges of possession of cannabis with intent to sell, criminal mischief, and battery on a



      1
          Citrus County case numbers 2014-CF-0870 and 2014-CF-1214.
law enforcement officer.2 Because the reasons given for the departure sentences are

either legally insufficient or not factually supported, we reverse. See State v. Leverett, 44

So. 3d 634, 637 (Fla. 5th DCA 2010) (finding home invasion was not isolated because

defendant had a prior record which included a felony conviction for possession of cocaine

and misdemeanor convictions for possession of marijuana, possession of drug

paraphernalia, and trespass); State v. Stephenson, 973 So. 2d 1259, 1264 (Fla. 5th DCA

2008) (finding incident not isolated where defendant had substantial criminal record, and

noting, additionally, that Florida courts have consistently held that family support concerns

are not valid reasons to depart downward); State v. Subido, 925 So. 2d 1052, 1059 (Fla.

5th DCA 2006) (explaining that “[a] downward departure is not justified merely because

the defendant cooperated after his offense was discovered”); State v. Munro, 903 So. 2d

381, 382 (Fla. 2d DCA 2005) (rejecting a downward departure sentence for a defendant

who confessed to the police, lacked a prior record, and garnered the victim’s mother’s

support); State v. Ertel, 886 So. 2d 423, 425 (Fla. 2d DCA 2004) (determining that “[w]hile

cooperation with law enforcement is a valid ground for a downward departure,

[defendant’s] action here in not requiring the officers to obtain a search warrant to search

his home and in giving a statement to officers did not rise to the level of cooperation that

is required in order to justify a downward departure sentence”); State v. Bell, 854 So. 2d

686, 691 (Fla. 5th DCA 2003) (explaining that the defendant has the burden to prove that

a crime was resolved as a result of his or her cooperation); State v. Arvinger, 751 So. 2d



       2
         Over the State’s objection, the trial court extended an offer of five years'
incarceration suspended upon completion of three years' drug offender probation. At the
sentencing hearing, the State declined to waive the minimum guidelines, advising the trial
court that Cleveland’s lowest permissible sentence was 30.45 months DOC.



                                             2
74, 77 (Fla. 5th DCA 1999) (entering a guilty plea to all charges is not sufficient to

constitute cooperation as a mitigating factor); State v. Falocco, 730 So. 2d 765, 765 (Fla.

5th DCA 1999) (holding in order to qualify for a valid departure under section 921.0026(j),

Florida Statutes, the defendant must establish all three elements: that the offense was

committed in an unsophisticated manner, that it was an isolated incident, and that the

defendant has shown remorse).

       We note, however, that Cleveland entered his plea based on the trial court’s

promise to impose a downward departure sentence. Accordingly, on remand, he should

be given the opportunity to withdraw his plea and proceed to trial. See State v. Hepburn,

48 So. 3d 1001 (Fla. 5th DCA 2010); State v. Reith, 43 So. 3d 909, 910 (Fla. 2d DCA

2010). If Cleveland does not wish to withdraw his plea, he should be adjudicated guilty

and resentenced in conformance with the Criminal Punishment Code. See Jackson v.

State, 64 So. 3d 90, 92-93 (Fla. 2011) (explaining that “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.”).

       SENTENCES VACATED; REVERSED and REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.




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