STATE OF FLORIDA, APPELLANT,
v.
RHONDA DUNNING, APPELLEE
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The State appealed Rhonda Dunning's downward departure sentences for lewd and lascivious acts and unlawful sexual activity with minors. The court found the trial judge's reasons for departure—that the offense was unsophisticated and isolated with remorse shown—were not supported by a preponderance of the evidence and reversed, remanding for resentencing within guidelines.
The trial court's reasons for downward departure were not supported by a preponderance of the evidence. The facts established that Dunning's conduct was neither isolated nor unsophisticated, and the record did not demonstrate genuine remorse. Accordingly, the sentences were reversed and the case remanded for resentencing within guidelines.
[1] A downward departure sentence is not supported by the evidence when the trial court's stated reasons for departure are not established by a preponderance of the evidence.
[2] A defendant's denial of guilt throughout trial and after conviction does not support a finding of remorse for sentencing purposes.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The reason given by the trial court for departure was "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." The facts do not support this reason.”
Establishes the trial court's stated basis for downward departure and the appellate court's threshold disagreement with the factual support for those reasons.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDunning engaged in sexual conduct with multiple male juveniles at her apartment. One boy testified he became intoxicated after Dunning provided beer a…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The State appeals Rhonda Dunning’s sentences for lewd and lascivious act in the presence of a child under the age of sixteen and unlawful sexual activity with a minor. It contends that a preponderance of the evidence does not support the reason given by the trial court for departing downward from the sentence range recommended by the guidelines. We agree and reverse.
The reason given by the trial court for departure was “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The facts do not support this reason. One of the boys involved in this case advised law enforcement that he went to Dunning’s apartment with another male. Dunning gave him beer, he became intoxicated, and, after Dunning had sexual intercourse with the other male, she had intercourse with him. The other boy involved in this case advised law enforcement that he and other juveniles would go to Dunning’s apartment and they could obtain beer and marijuana there if they desired. This boy further testified that Dunning performed oral sex on him on several occasions. These facts reveal that Dunning’s behavior was neither an isolated incident nor unsophisticated.
The record does not show that Dunning showed remorse for her behavior. Although her attorney stated several times at the sentencing hearing that Dunning was remorseful, Dunning herself stated the following:
[I]t’s hard for me to say that I’m sorry for something that I didn’t do.... [Y]es, I’m sorry, I used bad judgment. I’m from Maine. We trust people down there. I didn’t want — I didn’t lock my doors at night. I didn’t lock my car when I got out of it. This place is totally different from where I came from, and I was naive to the whole thing. I tried helping people and I ended up — I’m very sorry for ever having come here. And if I hurt people, I’m very sorry.
The reason given by the trial court for imposing a downward departure sentence is not supported by a preponderance of the evidence. See § 921.001(6), Fla. Stat. (1997). Accordingly, we reverse Dunning’s sentences and remand for re-sentencing within the guidelines. Because Dunning’s sentences were the result of a plea agreement with the trial court, on remand Dunning should be given the opportunity to withdraw her plea.
Reversed and remanded for resentencing.
FULMER, A.C.J., and WHATLEY and DAVIS, JJ., Concur.
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State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999)…for the downward departure here would never be legally sufficient in a proper case.3 We do agree, however, that the slender record provided to us on appeal utterly fails to support the reasons given for the departure sentence. See State v. Dunning, 742 So. 2d 378 (Fla. 2d DCA 1999). No testimony was given under oath by anyone. It defies understanding how the judge could have concluded that Amodeo was cooperative,4 or remorseful.5 Even after Amodeo tendered his open guilty plea, he denied he was guilty of th…
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State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006)…ort the reason given by the trial court for departing downward from the sentence range, we reverse and remand for sentencing within the guidelines. See Mann, 866 So. 2d at 184; Staffney v. State, 826 So. 2d 509 (Fla. 4th DCA 2002); State v. Dunning, 742 So. 2d 378, 379 (Fla. 2d DCA 1999). CROSS-APPEAL Subido cross-appeals the court’s determination that he is a sexual predator without a hearing to determine his danger to the community, stating without argument or citation that the registration requirement of…