STATE OF FLORIDA, APPELLANT,
v.
DANIEL SWEENEY, APPELLEE

Fla. 2d DCA | 2011-08-05
No. 2D09-626
WHATLEY and KHOUZAM, JJ., Concur.
67 So. 3d 1154 Florida District Court of Appeal, Second District (2011)

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Synopsis

The State appealed a downward departure sentence imposed on Sweeney for ten counts of possession of child pornography. The appellate court reversed, finding that the trial court's stated reasons for departure—that the offense was unsophisticated, isolated, and that Sweeney showed remorse and cooperated with law enforcement—were not supported by competent, substantial evidence in the record.


Holding

The downward departure sentence was not supported by competent, substantial evidence. While remorse was shown, the offense was not unsophisticated or isolated, and Sweeney's cooperation with law enforcement (not requiring a search warrant and admitting ownership of the disk) did not rise to the level necessary to support departure because it did not result in solving crimes or arresting others.


Headnotes

[1] A trial court must articulate valid legal grounds for a downward departure sentence, and those grounds must be supported by competent, substantial evidence.

[2] To support a downward departure sentence based on an offense committed in an unsophisticated manner and as an isolated incident, all three elements must be shown: the off…

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Key Quotes

“Although a trial court may in its discretion impose a downward departure sentence, it must articulate valid legal grounds for doing so, and those grounds must be supported by competent, substantial evidence.”

Establishes the foundational legal standard that trial courts must meet when imposing downward departure sentences.

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Facts & Procedural History

Sweeney was originally charged with 40 counts of possession of child pornography stemming from law enforcement's seizure of a single DVD from his home…

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Opinion of the Court
KELLY, Judge.

KELLY, Judge.

The State appeals from the downward departure sentence imposed on Daniel Sweeney following his no contest plea to ten counts of possession of child pornography. Because the reasons for departure articulated by the trial court are not supported by competent, substantial evidence, we reverse.

Sweeney was originally charged with forty counts of possession of child por*1155nography stemming from law enforcement’s seizure of a single DVD from his home. Sweeney entered an open plea of no contest to counts one through ten. In exchange, the State nolle prossed the remaining counts. Sweeney’s criminal punishment code scoresheet reflected a lowest permissible sentence of 127.5 months. The trial court, however, departed downward and sentenced Sweeney to two years’ community control followed by ten years’ probation. In pronouncing sentence, the trial court justified the departure stating that “this was an isolated incident committed in an unsophisticated manner. I think [Sweeney] has shown remorse_And I think he did cooperate with law enforcement.”1 On appeal, the State argues that the trial court’s reasons for departure are not supported by evidence in the record. We agree.

Although a trial court may in its discretion impose a downward departure sentence, it must articulate valid legal grounds for doing so, and those grounds must be supported by competent, substantial evidence. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The trial court based Sweeney’s departure sentence on the finding that the offense was committed in an unsophisticated manner and that it was an isolated incident for which Sweeney has shown remorse. See § 921.0016(4)(j), Fla. Stat. (2007). “To support a departure based on this reason, all three elements must be shown: that the offense was committed in an unsophisticated manner, that it was an isolated incident, and that the defendant has shown remorse.” State v. Falocco, 730 So.2d 765, 765 (Fla. 5th DCA 1999) (citations omitted); see State v. Munro, 903 So.2d 381, 382 (Fla. 2d DCA 2005). While the record supports the trial court’s finding that Sweeney was remorseful, there was no evidence that the offense was unsophisticated or that this was a single, isolated incident. In fact, the record reveals that Sweeney had previously downloaded child pornography and traded the disks with other individuals.

The trial court also justified the downward departure noting that Sweeney cooperated with law enforcement by not requiring the officers to obtain a search warrant for his home and in admitting to police that the disk containing the pornographic images belonged to him. See § 921.0016(4)(i). While cooperation with law enforcement is a valid basis for a downward departure sentence, Sweeney’s actions do not rise to the level of cooperation that 'will support a downward departure because his assistance did not result in solving any crimes or lead to the arrest of other persons. See State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2005); State v. Ertel, 886 So.2d 423, 425 (Fla. 2d DCA 2004).

Accordingly, we reverse Sweeney’s sentence and remand for imposition of a guidelines sentence.

Reversed and remanded.

WHATLEY and KHOUZAM, JJ., Concur.


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