STATE OF FLORIDA, APPELLANT,
v.
ANTHONY D. JORDAN, APPELLEE
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The State appeals a downward departure sentence imposed on Anthony D. Jordan for burglary and grand theft. The Florida appellate court held that the trial judge failed to satisfy all three statutory prongs required for a downward departure departure sentence under section 921.0026(2)(j), particularly the requirement that the crime be an isolated incident, and therefore quashed the sentence and remanded for sentencing within the guidelines.
The court held that the trial judge's downward departure sentence was deficient because Jordan's criminal history demonstrated that the crime was not an isolated incident, failing to satisfy one of the three mandatory prongs for departure. The court reasoned that sentencing courts cannot adopt a new mitigating circumstance by simply eliminating one of the statutory prongs of an enumerated reason for departure.
[1] A downward departure sentence requires satisfaction of all prongs of a statutorily enumerated reason for departure.
[2] A crime is not an isolated incident for purposes of downward departure sentencing when the defendant has prior felony and misdemeanor convictions.
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“section 921.0026(2)(j), Florida Statutes (2003), requires three prongs for departure. More specifically, section 921.0026(2)(j) mandates that: (1) the crime was committed in an unsophisticated manner; (2) the defendant has shown remorse; and (3) the crime was an isolated incident.”
Establishes the three mandatory statutory prongs for a downward departure sentence
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Join FLexlaw to unlock all legal intelligenceAnthony D. Jordan was arrested exiting a residence carrying a pink piggy bank and walking toward a parked vehicle. An attempted burglary had occurred …
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PETERSON, J.
.The State appeals a downward departure sentence imposed upon Anthony D. Jordan .who was arrested by a Seminole County Sheriffs deputy as Jordan was exiting a residence carrying a pink piggy bank and walking towards a purple vehicle parked in the driveway. The deputy’s sus: picion was - aroused because an attempted burglary had occurred at the same residence six days earlier. After pleading guilty to burglary of a dwelling and grand theft, the court imposed a downward departure sentence instead of the lowest possible sentence of 37.65 months incarceration. . The court reasoned that the unsophisticated manner in which the crime was committed together with Jordan’s expression of remorse warranted the suspension of the two five-year terms of incarceration, and imposed ten years probation instead.
The trial judge’s reasoning is deficient in that section 921.0026(2)(j), Florida Statutes (2003), requires three prongs for departure. More specifically, section 921.0026(2)(j) mandates that: (1) the crime was committed in an unsophisticated manner; (2) the defendant has shown remorse; and (3) the crime was an isolated incident. E.g., State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003). Jordan’s score sheet indicated that his convictions for burglary of a dwelling, a second-degree felony, and grand theft in the instant case, a third-degree felony, were not isolated incidents. Jordan had previously been convicted of ten prior felonies and four misdemeanors.
The State objected to the departure at sentencing by stating that “... the State would object to the court’s imposition of the downward departure sentence. The State doesn’t feel the prongs have been met by the defense.” The court then asked if there was “[ajnything further from the defense?” After hearing no response, the court then proceeded to sentence Jordan. Jordan now complains that the State’s objection was not specific enough, but the record does not indicate that either the court or Jordan’s counsel failed to understand the grounds for the objection. The reason for making an objection at the trial level is to bring an alleged error to the trial court’s attention so that the court can consider the matter. The record does not indicate that there was any doubt in either the court’s or the defense counsel’s minds about the grounds for the objection in the instant case.
Sentencing courts are not exclusively bound to the departure reasons promulgated in section 921.0026, but we do not believe that the Legislature intended that sentencing courts adopt, a new mitigating circumstance by simply eliminating one of the prongs of a statutorily enumerated reason for departure.
We quash the sentence and remand for sentencing within the guidelines.
SENTENCE QUASHED and REMANDED.
PLEUS and ORFINGER, JJ., concur.
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State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008)…e were not isolated incidents when defendant was previously convicted of resisting officer without violence, two violations of probation, aggravated battery with deadly weapon, and fleeing or attempting to elude police officer), and State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004) (determining that convictions of burglary of dwelling and theft were not isolated incidents when defendant had ten felony and four misdemeanor prior convictions), with State v. Merritt, 714 So. 2d 1153 (Fla. 5th DCA 1998) (conclu…
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State v. Colbert, 968 So. 2d 1043 (Fla. 5th DCA 2007)…y provided one reason in support of its downward departure, and the validity of that reason was clearly being challenged by the general objection. The trial court was on notice of its error, and had the opportunity to correct it.”); State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004) (holding statement that “[t]he State doesn’t feel the prongs have been met by the defense” sufficiently preserved objection to downward departure sentence). The transcript of the plea and sentencing hearing in this case shows th…
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State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005)…violations of probation; (3) aggravated battery with a deadly weapon; and (4) fleeing or attempting to elude a police officer. We vacate the downward departure sentence and remand for resentencing within the guidelines. See, e.g., State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004) (recognizing that for purposes of section 921.0016(4)©, a crime may not be considered an isolated incident where the defendant has previously been convicted of other felonies and misdemeanors). i SENTENCE VACATED; REMANDED. GRI…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003)