STATE OF FLORIDA, APPELLANT,
v.
JAMES LEROY BRALEY, APPELLEE
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Florida appeals a trial court's downward departure sentence for insurance fraud based on a perceived need for restitution. The appellate court reverses, holding that the departure was unsupported by competent evidence and remands for resentencing, allowing the defendant to withdraw his plea since it was induced by the improper sentencing offer.
A downward departure sentence cannot be sustained when the only evidence supporting the departure ground is defense counsel's bare representations without competent substantial evidence. The defense must prove facts supporting a departure ground by a preponderance of the evidence, and the plea must be vacated on remand since it was induced by the improper sentencing offer.
[1] A trial court must impose a guidelines sentence unless competent, substantial evidence supports a valid reason for departure.
[2] The defendant bears the burden of proving by a preponderance of the evidence that a valid reason for departure exists.
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“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 for departure sentences and the burden on the defense.
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Join FLexlaw to unlock all legal intelligenceJames Braley was charged with burning a Lexus automobile to defraud an insurer. The minimum guideline sentence was 27.15 months imprisonment. At the p…
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CASANUEVA, Judge.
The State challenges a downward departure sentence imposed by the trial court based upon a claimed need for restitution. We find merit in the State’s contention that there was no evidence to support the departure basis and reverse.
James Braley was charged with burning a Lexus automobile for the purpose of defrauding an insurer. The lowest permissible sentence under the guidelines for the charges Mr. Braley faced was 27.15 months’ imprisonment. At a plea and sentencing hearing, the court, perceiving a need for considerable restitution, offered Mr. Braley a departure sentence that included a term of community control followed by a period of probation. The State objected, noting that it had no contact with the insurance company regarding a need or desire for restitution, that the defendant had a prior criminal history, and that Mr. Braley had previously received the benefit of a community control sentence. Without evidence of the need for restitution, the State argued, the court could not legally impose a downward departure sentence. We agree. In State v. Bernard, 744 So. 2d 1184, 1135 (Fla. 2d DCA 1999), this court observed that a critical problem exists when no evidence is presented to support a finding of a departure basis. Where the grounds for departure are provided solely through the representations of defense counsel, as here, the basis is legally insufficient, and the lack of competent evidence mandates reversal of the departure sentence.
In a case similar to this, State v. Knopp, 765 So. 2d 164 (Fla. 2d DCA 2000), the State challenged a downward departure based upon a trial court finding that the need for restitution outweighed the need for prison. Again, the only evidence supporting the downward departure were defense counsel’s bare representations, which this court held insufficient. “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.” Id. at 165. In the absence of competent substantial evidence of the need for restitution, the departure cannot be sustained.
Based on Bernard and Knopp, we reverse the departure sentence imposed by the court. On the basis of the same authority, we direct that on remand Mr. Braley must be given an opportunity to withdraw his plea, because his plea was induced by the court. See Knopp, 765 So. 2d at 165; Bernard, 744 So. 2d at 1135. On resentencing after further proceedings, the trial court may again impose a downward departure sentence if it finds sufficient competent evidence for mitigation.
Reversed and remanded with instructions.
BLUE, C.J., and KELLY, J., concur.
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Citator
Cited By
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State v. Champion, 898 So. 2d 1111 (Fla. 2d DCA 2005)…pport the departure requires a reversal. On remand, Champion should be given the opportunity to withdraw his guilty plea because it was induced by the trial court’s representation that he would receive a probationary sentence. See State v. Braley, 832 So. 2d 255, 256 (Fla. 2d DCA 2002). If, after further proceedings, the trial court finds that sufficient evidence supports a downward departure, it may again impose a departure sentence. See State v. Bernard, 744 So. 2d 1134, 1136 (Fla. 2d DCA 1999). Reverse…
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State v. Scott, 879 So. 2d 99 (Fla. 2d DCA 2004)…State v. Bleckinger, 746 So. 2d 553, 556 (Fla. 5th DCA 1999) (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.…
Authorities Cited
- State v. Jacline Rose Knopp, 765 So. 2d 164 (Fla. 2d DCA 2000)
- Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999)