STATE OF FLORIDA, APPELLANT,
v.
MICHAEL RAY JONES, APPELLEE
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The State appealed a downward departure sentence imposed by the trial court for child abuse and possession of a controlled substance. The appellate court reversed, finding that the defendant's significant criminal history precluded a downward departure sentence under Florida's sentencing guidelines.
The court held that all three elements required by section 921.0026(2)(j)—lack of sophistication, isolated incident status, and remorse—must be established to permit departure. The defendant failed to satisfy the isolated incident requirement given his significant criminal history, and thus the downward departure sentence was not supported by competent substantial evidence.
[1] A downward departure sentence under section 921.0026(2)(j), Florida Statutes, requires proof of all three elements: offenses committed in an unsophisticated manner, isola…
[2] A defendant's prior criminal history, including felony convictions and probation violations, may preclude a finding that current offenses are isolated incidents for purpo…
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Join FLexlaw to unlock all legal intelligence“Under the plain language of section 921.0026(2)(j), all three elements — lack of sophistication, isolated incident, and remorse — must be established to permit a departure sentence.”
Establishes the legal standard for downward departure under Florida law
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Join FLexlaw to unlock all legal intelligenceThe defendant entered an unconditional nolo contendere plea to child abuse and possession of a controlled substance. His criminal history included a p…
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The state appeals the trial court’s decision to impose a downward departure sentence after appellee entered an unconditional nolo contendere plea to child abuse and possession of a controlled substance. We agree with the state that the trial court’s reason for departure was not supported by competent substantial evidence. Accordingly, we reverse and remand for resentencing.
The trial court imposed a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2012), upon finding the offenses were committed in an unsophisticated manner and were isolated incidents for which appellee had shown remorse. Under the plain language of section 921.0026(2) (j), all three elements — lack of sophistication, isolated incident, and remorse — must be established to permit a departure sentence. State v. Geoghagan, 27 So.3d 111, 114 (Fla. 1st DCA 2009); State v. Jerry, 19 So.3d 1167, 1170 (Fla. 1st DCA 2009). The state argued below that a downward departure was not warranted because appellee’s offenses were not isolated and appellee had not shown sufficient remorse. We agree there was insufficient evidence to support the trial court’s finding that appellee’s current offenses were isolated incidents.
Appellee’s criminal history included a prior felony conviction for manslaughter, for which appellee was returned to prison after violating his probation; a prior felony conviction for possession of a controlled substance; and two prior misdemeanor convictions, one of which was for resisting an officer without violence. In light of this prior record, appellee failed to show that his current offenses of child abuse and possession of a controlled substance (the latter committed while appellee was on pretrial release for the former) were isolated incidents. See State v. Leverett, 44 So.3d 634, 637 (Fla. 5th DCA 2010) (holding that home invasion robbery was not an isolated incident where defendant had a prior record that included a felony conviction for possession of cocaine and misdemeanor convictions for possession of marijuana, possession of drug paraphernalia, and trespass); State v. Tice, 898 So.2d 268, 269 (Fla. 5th DCA 2005) (holding that defendant’s latest felonies of burglary of a dwelling and resisting an officer without violence were not isolated incidents where defendant was previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer).
Although the trial court noted a significant temporal break between appellee’s current offenses and his prior convictions, this was due to the fact appellee served considerable time in prison on his prior manslaughter conviction. We conclude ap-pellee’s criminal record was significant enough to preclude a downward departure sentence under section 921.0026(2)(j). Accordingly, we reverse appellee’s sentence and remand for resentencing. See Jackson v. State, 64 So.3d 90 (Fla.2011).
REVERSED and REMANDED for re-sentencing.
WETHERELL and OSTERHAUS, JJ., concur.
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State v. Milici, 219 So. 3d 117 (Fla. 5th DCA 2017)…rse. § 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to “prove these elements, or other mitigating factors, before the trial court will depart.” Wallace v. State, 197 So. 3d 1204, 1205 (Fla. 1st DCA 2016) (citing State v. Jones, 122 So. 3d 517, 518 (Fla. 1st DCA 2013)). We first address the trial court’s departure under section 921.0026(2)(j). This subsection permits downward departure where three elements are present: “(a) the offense must have been ‘committed in an unsophisticated mann…
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State v. Burt, 183 So. 3d 1117 (Fla. 5th DCA 2015)…007. Burt was also convicted of driving without a valid driver’s license in 2012. In light of this record, there was insufficient evidence to support the trial court’s finding that Burt’s current offenses were isolated incidents. See State v. Jones, 122 So. 3d 517 (Fla. 1st DCA 2013). Although the State did not dispute that Burt committed the offenses in an unsophisticated manner and was remorseful, we agree that both the nature and timing of Burt’s prior offenses preclude the finding that the current offense…
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State v. Raymundo Centeno, Jr., 192 So. 3d 705 (Fla. 5th DCA 2016)…out violence, and petit theft. Notably, like the present cases Centeno’s prior theft was the result of him stealing a tool from a store. With this record, we cannot conclude that Centeno’s current offenses are isolated incidents. See State v. Jones, 122 So. 3d 517, 518 (Fla. 1st DCA 2013) (explaining that prior record consisting of two felonies and two misdemeanors precluded Appellant from showing current offenses were isolated incidents); Thompkins, 113 So. 3d at 99 (finding significant criminal history, inc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 64 So. 3d 90 (Fla. 2011)
- State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 2009)
- State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010)
- State v. Tirone Alonza Jerry, 19 So. 3d 1167 (Fla. 1st DCA 2009)
- State v. Tice, 898 So. 2d 268 (Fla. 5th DCA 2005)