STATE OF FLORIDA, APPELLANT,
v.
JOSEPH A. NICOLOSI, APPELLEE
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The State appealed a downward departure sentence imposed on Joseph Nicolosi for attempted possession of cocaine, arguing the departure reasons lacked evidentiary support. The Florida appellate court reversed and remanded, holding that the trial court's departure findings were based solely on defense counsel's representations without competent evidence in the record, and that because the court's representations may have induced the guilty plea, the defendant must be given an opportunity to withdraw it.
The court reversed the sentence for lack of record evidence supporting the departure. The court held that when defense counsel's representations provide the only foundation for a departure, the reasons are legally invalid. Because the trial court's representations may have induced the guilty plea, on remand the defendant must be given an opportunity to withdraw his plea before resentencing.
[1] A downward departure sentence is legally invalid when the reasons for departure are not supported by substantial competent evidence in the record.
[2] The defense bears the burden of proving facts supporting a downward departure by a preponderance of the evidence.
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“To establish a legal ground for departure, the defense must prove the supporting facts 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 intelligenceNicolosi was arrested for attempting to purchase crack cocaine from an undercover officer who actually sold macadamia nuts. He pleaded guilty to the r…
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CASANUEVA, Judge.
The State appeals from the downward departure sentence imposed on Joseph A. Nicolosi for attempted purchase of cocaine, contending that the departure reasons were not supported by substantial competent evidence. We reverse.
Mr. Nicolosi was arrested and charged with attempted purchase of crack cocaine from an undercover police officer on October 19, 2001. Rather than use real cocaine in this sting operation, the police had chosen the safer alternate of selling macadamia nuts, which look very much like crack cocaine. At a hearing in which Mr. Nicolo-si pleaded guilty to the reduced charge of attempted possession of cocaine, the court expressed a concern that law enforcement was concentrating its resources on purchasers rather than sellers of illegal drugs and posed a valid query: “I thought the whole intervention process was to stop the stuff from getting there, not the folks that are in the addiction phase and need help. So we are ensnaring him so we can incarcerate him?” The State’s equally valid response was that the charge was viable.
During the sentencing hearing, the State established that Mr. Nicolosi’s prior record included possession of paraphernalia, an assault, and two lewd and lascivious charges. Based on this record, Mr. Nico-losi scored a minimum guideline sentence of twenty-four months’ imprisonment for attempted possession of cocaine. Rather than the minimum required sentence, the trial court offered and, when accepted, imposed a downward departure sentence of county jail time, finding as a basis that the offense was an isolated incident committed in an unsophisticated manner for which the defendant had shown remorse. The State did not consent to the departure sentence.
To establish a legal ground for departure, the defense must prove the supporting facts by a preponderance of the evidence. State v. Knopp, 765 So. 2d 164, 165 (Fla. 2d DCA 2000). When defense counsel’s representations provide the only foundation for the departure, as in this case, the reasons are legally invalid. State v. Bernard, 744 So. 2d 1134, 1135 (Fla. 2d DCA 1999).
We must reverse Mr. Nicolosi’s sentence for lack of record evidence to support the departure. However, because the court induced his plea by its representations, on remand Mr. Nicolosi must be given an opportunity to withdraw his plea. On resentencing after further proceedings, the court may again impose a downward departure if it finds that the defense has introduced legally sufficient evidence to support it.
Reversed and remanded.
ALTENBERND and NORTHCUTT, JJ., Concur.
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Citator
Cited By
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State v. Scott, 879 So. 2d 99 (Fla. 2d DCA 2004)…ndant be permitted to withdraw a plea induced by the sentencing court’s statement that the court would impose the downward departure sentence. See Braley, 832 So. 2d at 256; State v. Teal, 831 So. 2d 1254, 1256 (Fla. 2d DCA 2002); State v. Nicolosi, 830 So. 2d 281, 282 (Fla. 2d DCA 2002); State v. Rosa, 774 So. 2d 730, 731 (Fla. 2d DCA 2000); State v. Knopp, 765 So. 2d 164, 165 (Fla. 2d DCA 2000); Petringelo, 762 So. 2d at 966. Accordingly, the sentence of twenty-four months’ probation with restitution is re…
Authorities Cited
- State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999)
- State v. Jacline Rose Knopp, 765 So. 2d 164 (Fla. 2d DCA 2000)