STATE OF FLORIDA, APPELLANT,
v.
NICHOLAS PETRINGELO, APPELLEE
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The State appeals a trial court's downward departure sentences imposed after the defendant admitted to probation violation. The appellate court reverses, finding that the trial court's departure grounds lacked evidentiary support, and remands for resentencing within the guidelines with an opportunity for the defendant to withdraw his plea.
The trial court improperly departed downward from the sentencing guidelines because neither stated reason was supported by competent substantial evidence. The court reversed the departure sentences and remanded for resentencing within the guidelines, with an opportunity for Petringelo to withdraw his plea since the original sentences resulted from a plea agreement.
[1] A downward departure sentence requires competent substantial evidence to support the factual findings upon which the departure is based.
[2] A finding that a defendant is amenable to treatment must be supported by competent substantial evidence.
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Join FLexlaw to unlock all legal intelligence“A finding that the defendant is amenable to treatment must be based on competent substantial evidence.”
Establishes the evidentiary standard required for departure based on amenability to treatment
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Join FLexlaw to unlock all legal intelligencePetringelo admitted to violating his probation. The trial court imposed downward departure sentences based on two findings: (1) that Petringelo requir…
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WHATLEY, Judge.
The State appeals .the downward departure sentences that the trial court entered after Petringelo admitted to violating his probation. The trial court based the departure on two reasons. We conclude that neither, reason was supported by the evidence and reverse.
In departing downward from the guidelines, the trial court found that Pe-tringelo required specialized treatment for addiction and he was. amenable to such treatment, and it found that the need for the payment of restitution outweighed the need for a prison sentence. However, the defense presented no evidence in support of these two departure reasons.
A finding that the defendant is amenable to treatment must be based on competent substantial evidence. See Herrin v. State, 568 So. 2d 920 (Fla.1990); State v. Benjamin, 685 So. 2d 1335 (Fla. 2d DCA 1996).' See Banks v. State, 732 So. 2d 1065 (Fla.1999) (holding that to establish a sufficient legal ground for a downward departure sentence, the defense must prove the facts supporting the ground by a preponderance of the evidence). Here, there was no evidence that Petringelo was amenable to treatment. Therefore, departure was improperly based on the finding that Petringelo required specialized treatment for addiction and he was amenable to such treatment.
Regarding the trial court’s finding that the need for restitution outweighed the need fof a prison sentence, evidence that would support such' a finding includes the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment. See State v. Knopp, 765 So. 2d 164 (Fla. 2d DCA 2000). When the defense offers no evidence of these factors other than the argument of counsel, the departure must be reversed. Id. Because the defense presented no evi dence to support these factors, departure was improper. See Banks, 732 So. 2d at 1068-1069.
Accordingly, we reverse Petringelo’s departure sentences and remand for resentencing within the guidelines. Since Pe-tringelo’s sentences were the result of a plea agreement between Petringelo and the trial court, Petringelo should be given the opportunity to withdraw his plea on remand. See State v. Cohen, 667 So. 2d 438, 439 (Fla. 2d DCA 1996).
THREADGILL, A.C.J., and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Green, 890 So. 2d 1283 (Fla. 2d DCA 2005)…e specialized treatment required. Id.; State v. Tyrrell, 807 So. 2d 122, 128 (Fla. 5th DCA 2002). The defendant has the burden of proof to establish the facts that support a downward departure by a preponderance of the evidence. State v. Petringelo, 762 So. 2d 965, 965 (Fla. 2d DCA 2000) (citing Banks, 732 So. 2d 1065). Through Dr. Gamache’s testimony, Ms. Green established that she had major depressive and posttraumatic stress disorders that were “unrelated to substance abuse or addiction.” § 921.0026(2)(d)…
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State v. Hunter, 65 So. 3d 1123 (Fla. 4th DCA 2011)…the right rule of law and if competent substantial evidence supports its ruling.” Id. at 1067-68. The defendant has the burden of proof to establish the facts that support a downward departure by a preponderance of the evidence. State v. Petringelo, 762 So. 2d 965, 965 (Fla. 2d DCA 2000). Section 921.0026 establishes that a trial court is prohibited from giving a downward departure from the lowest permissible sentence under the Criminal Punishment Code “unless there are circumstances or factors that reasonab…
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State v. Scott, 879 So. 2d 99 (Fla. 2d DCA 2004)…(holding that since no evidence was adduced at the sentencing hearing the court could not find that cooperation by the defendant warranted a downward departure); see also State v. Braley, 832 So. 2d 255, 256 (Fla. 2d DCA 2002); State v. Petringelo, 762 So. 2d 965, 966 (Fla. 2d DCA 2000); State v. Owens, 848 So. 2d 1199, 1202 (Fla. 1st DCA 2003); State v. Quintanal, 791 So. 2d 23, 24 (Fla. 3d DCA 2001); State v. Schillaci, 767 So. 2d 598, 600 (Fla. 4th DCA 2000); State v. Silver, 723 So. 2d 381, 382, 383 (Fla…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- Herrin v. State, 568 So. 2d 920 (Fla. 1990)
- State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996)
- State v. Jacline Rose Knopp, 765 So. 2d 164 (Fla. 2d DCA 2000)
- State v. Benjamin, 685 So. 2d 1335 (Fla. 2d DCA 1996)