STATE OF FLORIDA, APPELLANT,
v.
SAMMY PERLMAN, APPELLEE
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The State appeals a downward departure sentence imposed on Perlman for two felony petit theft charges. The trial court relied on Florida Statutes § 921.0026(2)(j) to impose a below-minimum sentence, but the appellate court found that Perlman's extensive criminal record (3 robberies, 21 felonies, and 7 forgery-related thefts) precluded a finding that the offenses were 'isolated incidents' as required by statute, rendering the departure legally erroneous.
The court held that a defendant's extensive criminal history alone precludes a finding that an offense was 'an isolated incident' under § 921.0026(2)(j), regardless of whether the defendant's record includes the same offense for which he is being sentenced. Because Perlman's extensive criminal record failed to satisfy this prerequisite for downward departure, the trial court's departure sentence was not supported by competent, substantial evidence and was therefore erroneous.
[1] A downward departure sentence is prohibited unless there are circumstances or factors that reasonably justify the departure.
[2] A trial court's decision to impose a downward departure sentence involves a two-step process: determining if a valid legal ground exists and if that ground is supported b…
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Join FLexlaw to unlock all legal intelligence“extensive criminal history alone precludes the finding that an offense was "an isolated incident" under section 921.0026(2)(j)”
Establishes the core legal principle that extensive criminal records prevent the application of the isolated incident statutory exception for downward departures.
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Join FLexlaw to unlock all legal intelligenceSammy Perlman was convicted of two felony petit theft charges. At sentencing, the State represented without objection that Perlman's prior criminal re…
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The State of Florida timely appeals a downward departure sentence imposed upon Sammy Perlman for two felony petit theft charges. Among other grounds, the State argues that the departure was erroneous because it was premised on section 921.0026(2)0, Florida Statutes (2012), and Mr. Perlman’s extensive criminal record demonstrates that the underlying offenses were not isolated incidents as required by that provision. We agree and therefore vacate the sentence and remand for resen-tencing consistent with this opinion.
The decision to impose a downward departure is a two-step process. See State v. Owens, 848 So.2d 1199, 1201 (Fla. 1st DCA 2003). For the purposes of this appeal, we need only consider step one: whether a valid legal ground, supported by evidence, applies in this case. See State v. Jerry, 19 So.3d 1167, 1169 (Fla. 1st DCA 2009) (citing Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)); see also § 921.0026(1), Fla. Stat. (2012) (“A down*996ward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure.”). This step is a “mixed question of law and fact” requiring affirmance where the court applied the “right rule of law” and the ruling is supported by competent, substantial evidence. Jerry, 19 So.3d at 1169 (quoting Banks, 732 So.2d at 1067).
The trial court applied a valid legal ground for its downward departure as provided by section 921.0026(2)(j). This provision authorizes a trial court to depart from the lowest permissible sentence if the evidence shows (1) the offense was committed in an unsophisticated manner, (2) the offense was an isolated incident, and (3) the defendant has shown remorse. § 921.0026(2)(j). The ultimate inquiry before this court is whether all three of these elements were properly established in this case by competent, substantial evidence. See Jerry, 19 So.3d at 1170; State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006); State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005); State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004).
Focusing on the second element, Florida courts have held that extensive criminal history alone precludes the finding that an offense was “an isolated incident” under section 921.0026(2)(j). See, e.g., State v. Waterman, 12 So.3d 1265, 1268 (Fla. 4th DCA 2009) (where defendant had at least six prior convictions); Ayers, 901 So.2d at 945 (where defendant had eight prior convictions); State v. Gaines, 971 So.2d 219, 221 (Fla. 4th DCA 2008) (where the defendant had eighteen prior convictions); State v. Stephenson, 973 So.2d 1259, 1263-64 (Fla. 5th DCA 2008) (where the defendant had at least seventeen prior convictions). “This standard applies even if the defendant’s record does not include the same offense for which he is presently being sentenced.” Waterman, 12 So.3d at 1268.
In the case before us, the State represented to the trial judge without objection that Mr. Perlman’s prior criminal record consisted of three robberies, 21 felonies, and seven forgery related thefts. This record is too extensive under established case law to permit a finding that the offenses at issue were isolated incidents. Because the trial court’s finding on this prerequisite is not supported by competent, substantial evidence, the statutory basis given for departure cannot be sustained. Accordingly, we reverse the downward departure sentence and remand for resentencing.
REVERSED and REMANDED.
VAN NORTWICK and MARSTILLER, JJ., concur.
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Musur Monique Wallace v. State, 197 So. 3d 1204 (Fla. 1st DCA 2016)…tate v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th DCA 2007). And case law is clear that a defendant’s “extensive criminal history alone precludes the finding that an offense was ‘an isolated incident’ under section 921.0026(2)(j).” State v. Perlman, 118 So. 3d 994, 996 (Fla. 1st DCA 2013); see, e.g., Waterman, 12 So. 3d at 1268; State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005). But judges are not “precluded from giving a defendant a downward departure sentence just because the defendant has any prior cr…
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State v. Waylon Andrew Kahl, 333 So. 3d 809 (Fla. 1st DCA 2022)…depart must be “consistent with the legislative sentencing policy.” Id. The State advised the trial court on Kahl’s extensive criminal history and explained that the lowest permissible sentence was fifty-five months in prison. See State v. Perlman, 118 So. 3d 994, 996 (Fla. 1st DCA 2013) (holding that the trial court erred when it imposed a downward departure sentence for two felony petit theft charges when the defendant’s criminal record consisted of “three robberies, [twenty-one] felonies, and seven forger…
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Radice v. State, 271 So. 3d 1007 (Fla. 4th DCA 2019)…ther the event was isolated because, if it was not, we need not address whether it was sophisticated or whether he showed remorse. And when the record does not show the incident is isolated, we reverse the sentence. See, e.g., State v. Perlman, 118 So. 3d 994, 996 (Fla. 1st DCA 2013) (reversing and remanding for resentencing where the defendant’s criminal record was “too extensive under established case law to permit a finding that the offenses at issue were isolated incidents” under section 921.0026…
Authorities Cited
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005)
- State v. Stephenson, 973 So. 2d 1259 (Fla. 5th DCA 2008)
- Edwards v. State, 925 So. 2d 1052 (Fla. 5th DCA 2006)
- State v. Waterman, 12 So. 3d 1265 (Fla. 4th DCA 2009)
- State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006)
- Doyle L. Newton v. State, 848 So. 2d 1199 (Fla. 1st DCA 2003)
- State v. Cooper, 889 So. 2d 119 (Fla. 4th DCA 2004)
- State v. Gaines, 971 So. 2d 219 (Fla. 4th DCA 2008)
- State v. Tirone Alonza Jerry, 19 So. 3d 1167 (Fla. 1st DCA 2009)