THE STATE OF FLORIDA, APPELLANT,
v.
MIGUEL PEREZ-GONZALEZ, APPELLEE
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The State appealed the trial court's downward departure sentence for a burglary and theft conviction, arguing the court lacked valid reasons for the departure. The Third District Court of Appeal reversed, holding that the defendant failed to satisfy the statutory requirements for a downward departure, particularly because sentencing him as a habitual offender contradicted a finding that the crime was an isolated incident.
The court held that the defendant failed to meet the statutory requirements for a downward departure. Although the record arguably supported a finding of remorse, the defendant could not establish that the crime was an isolated incident (given his habitual offender status based on three prior felonies) or that it was committed in an unsophisticated manner (the defendant made a targeted 'surgical strike' to obtain a specific item, demonstrating planning and knowledge).
[1] A downward departure sentence under section 921.0026(2)(j), Florida Statutes, requires the trial court to find that the offense was committed in an unsophisticated manner…
[2] A prior criminal record, including felonies and misdemeanors, precludes a finding that an offense is an isolated incident for purposes of a downward departure sentence un…
Previewing 2 of 3 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(1), Florida Statutes, prohibits a downward departure from the lowest permissible sentence as calculated by the guidelines score sheet.”
Establishes the statutory prohibition on downward departures that governs the case
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Join FLexlaw to unlock all legal intelligenceMiguel Perez-Gonzalez was convicted of burglary and theft for breaking into a victim's property and stealing a specific item—a bird. The defendant had…
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LEVY, Judge.
The State appeals from a final judgment of conviction and sentence on the ground that the trial court erroneously sentenced the defendant, Miguel Perez-Gonzalez, to a downward sentence without valid reasons for the departure.
Section 921.0026(1), Florida Statutes, prohibits a downward departure from the lowest permissible sentence as calculated by the guidelines score sheet. § 921.0026(1), Fla. Stat. (2003). Section 921.0026(2)©, Florida Statutes, permits a downward departure sentence where the defendant can establish that the crime was an isolated incident, that the crime was committed in an unsophisticated manner, and that the defendant showed remorse. § 921.0026(2)(j), Fla. Stat. (2003)(emphasis added); State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004); State v. Santomaso, 764 So. 2d 735, 737 (Fla. 2d DCA 2000).
In the instant ease, the Record arguably supports the court’s finding that the defendant showed remorse.
However, we are at a loss to comprehend how the court could come to the conclusion that defendant’s act was an isolated incident, especially where the court sentenced the defendant as a habitual offender based on his three previous felony convictions.1 State v. Jordan, 867 So. 2d 635, 636 (Fla. 5th DCA 2004) (reversing the trial court’s departure sentence, finding that the crime for which defendant was charged was not an isolated incident where the defendant had previously been convicted of several felonies and misdemeanors).
Moreover, the Record refutes the finding that the crime was committed in an unsophisticated manner where the Record reflects that the defendant made a “surgical strike” to reach in and take the one item he wanted, the bird;2 He broke into the victim’s property, knew what he wanted, and got it. Because the defendant is unable to meet the three prongs, isolated incident, unsophisticated manner, and remorse, for a downward departure sentence, the matter must be reversed. See State v. Brannum, 876 So. 2d 724, 725 (Fla. 5th DCA 2004); Jordan, 867 So. 2d at 636.
Accordingly, we reverse defendant’s sentence and remand to the trial court with directions to enter an appropriate sentence within the guidelines or allow the defendant an opportunity to withdraw his plea.
Reversed and remanded.
. The Record clearly support the court’s finding that defendant is a habitual offender. . Apparently, the bird that was stolen was the one specific item sought by defendant in this case. The fact that defendant was arrested, convicted, and sentenced solely for the burglary and theft of the bird, gives new meaning to the adage:' "A bird in the hand is worth two in the bush” except that in this case, the bush was worth a three year prison sentence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Noe Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006)…t to justify departure; the offense must have been isolated, committed in an unsophisticated manner, and one for which ‘the defendant had shown remorse.”); see also State v. Strawser, 921 So. 2d 705, 707 (Fla. 4th DCA 2006); State v. Perez-Gonzalez, 884 So. 2d 1031 (Fla. 3d DCA 2004). As the record does not contain competent substantial evidence which would support a finding that the charged offenses were committed in an unsophisticated manner, a departure based upon section 921.0026(2)© was unjustified. Case…
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Eleazar Laroy Johnson v. State, 948 So. 2d 1014 (Fla. 3d DCA 2007)…and was an isolated incident for which the defendant has shown remorse.” In such an instance, a court may properly consider the defendant's remorse for the offense. See State v. Strawser, 921 So. 2d 705 (Fla. 4th DCA 2006); State v. Perez-Gonzalez, 884 So. 2d 1031 (Fla. 3d DCA 2004). The record before us, however, reflects that Johnson and his counsel never sought a mitigated sentence pursuant to this subsection. Rather, they sought a downward departure sentence as a youthful offender solely pursuant to secti…
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State v. Platt, 203 So. 3d 194 (Fla. 5th DCA 2016)…fendant and co-defendant took several distinctive and deliberate steps in committing the burglary and thefts and their actions demonstrated that they knew what they were doing in committing the burglary and thefts); see also State v. Perez-Gonzalez, 884 So. 2d 1031 (Fla. 3d DCA 2004) (finding burglary was not committed in an unsophisticated manner where defendant, who coveted a particular item, broke into the victim’s property and made a “surgical strike,” taking only that item); State v. Chestnut, 718 So. 2d…
Authorities Cited
- State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004)
- State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004)
- State v. Santomaso, 764 So. 2d 735 (Fla. 2d DCA 2000)