STATE OF FLORIDA, APPELLANT,
v.
RANDAL RENE HOLMES, APPELLEE
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The State appealed a downward departure sentence imposed on Randal Holmes following his no contest plea to drug trafficking charges near a place of worship. The court reversed, finding all five grounds cited by the trial judge for the downward departure were legally improper under Florida's sentencing guidelines.
The court held that all five grounds for downward departure were improper as a matter of law, and therefore the downward departure sentence was invalid. The court reversed and remanded for resentencing within the guidelines.
[1] Addiction to controlled substances is statutorily excluded as a basis for downward departure sentencing.
[2] A defendant's status as a minor participant or accomplice is not a valid ground for downward departure sentencing unless supported by competent substantial evidence in th…
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Join FLexlaw to unlock all legal intelligence“The fact that Holmes suffers from addiction to controlled substances is, as the trial judge recognized, specifically excluded as a statutory basis for downward departure.”
Establishes that one of the trial judge's grounds for downward departure was legally prohibited
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Join FLexlaw to unlock all legal intelligenceHolmes entered an open no contest plea to sale of cocaine within 1000 feet of a place of worship, conspiracy to sell/deliver cocaine within 1000 feet …
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PER CURIAM.
The State challenges the downward departure sentence that was imposed following Randal Rene Holmes’ entry of an open no contest plea to charges of sale of cocaine within 1000 feet of a place of worship, conspiracy to sell/deliver cocaine within 1000 feet of a place of worship, and possession of cocaine. The offenses were committed during an undercover drug sting operation; the buyer was an undercover officer. The trial judge gave five grounds for a downward departure sentence. Because we agree with the State that all five grounds given to support the downward departure were improper, we reverse.
The fact that Holmes suffers from addiction to controlled substances is, as the trial judge recognized, specifically excluded as a statutory basis for downward departure. § 921.0026(3), Fla. Stat. (2003). The finding that Holmes was only an accomplice and a relatively minor participant is not supported by competent substantial evidence in the record. That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)(f), Florida Statutes. State v. Grant, — So. 2d -, 2004 WL 3028212 (Fla. 2d DCA Dec. 3, 2004). Regarding downward departure based on prison overcrowding and strained budget of the Department of Corrections, the State correctly notes that no evidence was introduced regarding these factors and the trial judge did not take judicial notice of any type of report or other information to support the reason.
Finally, the finding that a downward departure was warranted pursuant to section 921.0026(2)(d), Florida Statutes, because Holmes requires specialized treatment for a physical disability and is amenable to treatment, is not supported by competent substantial evidence. Holmes testified he suffers from sickle cell anemia and finds relief through treatment (apparently with medication purchased over the counter). Holmes also stated that he had not had a “crisis” relating to sickle cell anemia in over 30 years. There is no evidence in the record that DOC could not or would not accommodate any treatment needed.
Because the downward departure was improper, we reverse and remand with directions that Holmes be resentenced within the guidelines.
REVERSED and REMANDED.
BARFIELD and LEWIS, JJ., Concur. WOLF, J., Dissents with opinion.
WOLF, J.,
Dissenting.
I dissent for the same reasons enumerated in State v. Holsey, 908 So. 2d 159 (Fla. 1st DCA 2005).