STATE OF FLORIDA, APPELLANT,
v.
JOSE LUIS DELEON, APPELLEE
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A downward departure sentence is improper if the trial court fails to find all three enumerated elements required by statute, supported by the record.
[1] A downward departure from a sentencing guideline requires the existence of all enumerated elements specified in the statute.
[2] The statutory ground for downward departure based on an unsophisticated offense requires findings that the offense was committed in an unsophisticated manner, was an isol…
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty to drug offenses. The trial court departed downward from the sentencing guidelines, citing the unsophisticated nature of …
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PER CURIAM.
Jose Luis Deleon entered a plea of guilty to the. sale of cocaine and possession of cocaine in violation of sections 893.13(l)(a)l and (6)(c), Florida Statutes (2001). Although his score sheet provided for a period of 22.8 months as the lowest possible prison sentence, the trial court departed downward by imposing a sentence of two five-year periods of probation to be served concurrently. The court’s reason for the departure was the “unsophisticated nature of the offense.” The State appeals the downward departure.
Section 921.0026(2)(j), Florida Statutes (2001), provides that one of the nonexclusive grounds for departure is that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” All three enumerated elements of section 921.0026(2)©, that the offense was 1) committed in an unsophisticated manner; 2) an isolated incident; and 3) the defendant must show remorse, must exist to constitute a basis for downward departure. E.g., State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003). The three required elements of section 921.0026(2)© must be supported by the record. Id. at 815.
Here, the trial court only found that Deleon’s offense was unsophisticated in nature but failed to find that Deleon’s offense was an isolated incident or that he was remorseful. Deleon’s offense could not have been characterized as isolated because his score sheet reflected previous offenses including four third-degree felonies, one second-degree felony and various misdemeanors. One of those felonies was for possession of cocaine and the others included tampering with evidence, felony assault, dealing in stolen property and grand theft. Additionally, the fact that Deleon was riding a bicycle when he sold his cocaine to an undercover policeman does not appear to us to be an unsophisticated way to transport cocaine to a location for sale. The sentence is vacated and we remand to the trial court for re-sentencing.
REVERSED and REMANDED.
SAWAYA, C.J., PETERSON and PALMER, JJ., concur.
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State v. Knox, 990 So. 2d 665 (Fla. 5th DCA 2008)…ine (twice). An “isolated incident” cannot be found simply because a defendant’s numerous prior convictions do not include the offense for which he is being sentenced. State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005); see also State v. Deleon, 867 So. 2d 636 (Fla. 5th DCA 2004). A defendant’s extensive prior criminal record precludes a showing that an offense was an isolated incident. Ayers, 901 So. 2d at 945. The trial court also found that a downward departure sentence was justified based on the vict…
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State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010)…one of the victims up against the wall, then struck another victim in the face; he then fled the scene in his vehicle and, after he was stopped by law enforcement, he fled on foot and later struggled with the arresting officer. See State v. Deleon, 867 So. 2d 636 (Fla. 5th DCA 2004) (holding that transporting cocaine via bicycle was not unsophisticated); State v. Chestnut, 718 So. 2d 312 (Fla. 5th DCA 1998) (holding incident was not unsophisticated when defendant threw an object to break the windshield of a…1 / 2
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State v. Cooper, 889 So. 2d 119 (Fla. 4th DCA 2004)…there was some evidence that appellant had shown remorse, there was no evidence to show the manner in which the crime was committed. Moreover, the evidence clearly disputed the finding that this was an isolated event. See generally State v. Deleon, 867 So. 2d 636, 637-38 (Fla. 5th DCA 2004) (holding that “where defendant’s score-sheet reflected previous felonies and misdemeanors, his conduct could not have been characterized as isolated.”). Thus, the trial court should have imposed a guidelines sentence. R…
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- State v. Thompson, 844 So. 2d 814 (Fla. 5th DCA 2003)