STATE OF FLORIDA, APPELLANT,
v.
JACLINE ROSE KNOPP, APPELLEE
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The State appealed a downward departure sentence imposed on Jacline Knopp for violating probation on a first-degree robbery conviction. The court reversed because the trial court's departure sentence lacked competent substantial evidence to support it, requiring the defense to present actual evidence rather than mere counsel argument.
The court held that the downward departure was not supported by competent substantial evidence. To establish a legal ground for departure, the defense must prove supporting facts by a preponderance of the evidence through actual evidence, not merely counsel's argument. The sentence must be reversed and remanded for re-sentencing.
[1] A downward departure sentence must be supported by competent substantial evidence.
[2] The facts supporting a downward departure must be proven by a preponderance of the evidence.
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Join FLexlaw to unlock all legal intelligence“In order to establish a sufficient legal ground for departure, the defense must prove the facts supporting the ground by a preponderance of the evidence.”
Establishes the evidentiary standard required to support a downward departure sentence
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Join FLexlaw to unlock all legal intelligenceKnopp committed first-degree robbery at a convenience store where she worked. She was originally sentenced with a downward departure based partly on t…
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PARKER, Acting Chief Judge.
The State of Florida appeals a downward departure sentence which the trial court entered after Jacline Rose Knopp admitted to a violation of probation. Because we find that the departure sentence was not supported by competent substantial evidence, we reverse.
The underlying crime in this case is first-degree robbery, which Knopp and some accomplices committed in the convenience store where she worked. At the original sentencing, the trial court departed downward based in part on the need for $3,200 in restitution to the store owner. Knopp twice violated probation, this time by testing positive for cocaine. Pursuant to an agreement with the trial court, Knopp admitted to the violation in exchange for a two-year term of drug offender community control, with six months in jail as a special condition. The sentence was a downward departure, which the trial court based on a finding that the need for restitution outweighed the need for prison.
The sentencing hearing was extremely brief. The sentencing guidelines score-sheet called for a minimum state prison sentence of 51.6 months. The only evidence offered to support a downward departure consisted of defense counsel’s representations that Knopp had taken her GED; that she had enrolled in drug treatment; that her drug counselor had written the judge a letter noting that she was doing well in treatment;1 and that her accomplices, who were both in prison, had not paid restitution. Counsel also represented that Knopp had reduced her restitution amount from $3,200 to $900.
The State correctly argues that this evidence is insufficient to support a downward departure. In order to establish a sufficient legal ground for departure, the defense must prove the facts supporting the ground by a preponderance of the evidence. See Banks v. State, 732 So. 2d 1065, 1067 (Fla.1999). An appellate court should affirm a departure only if it finds competent substantial evidence in support of it. Id. Evidence which would support a departure based on the need for restitution versus the need for imprisonment includes the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment. Id. at 1069.
However, when the defense fails to offer evidence of these factors apart from the argument of defense counsel, a departure cannot be sustained. See State v. Amodeo, 750 So. 2d 664, 666-67 (Fla. 5th DCA 1999); State v. Bleckinger, 746 So. 2d 553, 556 (Fla. 5th DCA 1999).
Because Knopp did not offer any evidence to support a downward departure based on the need for restitution other than argument by defense counsel, we are compelled to reverse and remand for re-sentencing. See State v. Stewart, 749 So. 2d 555, 555 (Fla. 2d DCA 2000).
While we can understand the trial court’s determination that the guidelines sentence might not be proportional to the violation in this case, we must adhere to the applicable law. Since the sentence resulted from a plea agreement between Knopp and the trial court, Knopp should be given the opportunity to withdraw her plea on remand. Id. In the event that Knopp withdraws her plea, the trial court may again impose a downward departure sentence provided it is supported by competent substantial evidence. Id. Otherwise, Knopp must be resentenced within the guidelines. Id.
Reversed and remanded.
CASANUEYA and DAVIS, JJ., Concur. . There is nothing in the record to suggest that this letter was offered into evidence at the hearing.
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State v. Dreama Adea Bell, 854 So. 2d 686 (Fla. 5th DCA 2003)…duced two lines of cases. One line of cases clearly allows the state to appeal a downward departure sentence imposed after- revocation of probation or community control. See, e.g., State v. Hurley, 772 So. 2d 594 (Fla. 1st DCA 2000); State v. Knopp, 765 So. 2d 164 (Fla. 2d DCA 2000); State v. Woodson, 745 So. 2d 570 (Fla. 5th DCA 1999); State v. Jordan, 678 So. 2d 526 (Fla. 5th DCA 1996); State v. Krueger, 664 So. 2d 26 (Fla. 3d DCA 1995). In all of the above cited cases, appellate courts reversed downward de…
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State v. Petringelo, 762 So. 2d 965 (Fla. 2d DCA 2000)…hat 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 [*966] dence to support these factors, departure was improper. See…
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State v. Butler, 787 So. 2d 47 (Fla. 2d DCA 2001)…raw his no contest plea. In the event Butler chooses to withdraw his plea, the trial court may once again impose a downward departure sentence if it is supported by competent, substantial evidence which is demonstrated of record. See State v. Knopp, 765 So. 2d 164, 164 (Fla. 2d DCA 2000). If Butler does not withdraw his plea, he must be sentenced within the guidelines. Reversed and remanded with directions. PATTERSON, C.J., and NORTHCUTT, J., Concur.…
Previewing 3 of 7 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)
- State v. Bleckinger, 746 So. 2d 553 (Fla. 5th DCA 1999)
- State v. Amodeo, 750 So. 2d 664 (Fla. 5th DCA 1999)
- State v. Stewart, 749 So. 2d 555 (Fla. 2d DCA 2000)