STATE OF FLORIDA, APPELLANT,
v.
MARTHA A. KUTZ, APPELLEE
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The State appealed a downward departure sentence imposed on Martha Kutz for grand theft. The trial court relied on a drug court participation mitigator under Florida law, but Kutz had no evidence of drug addiction—only a gambling problem—making the departure legally unsupported and reversible.
A gambling addiction does not provide competent, substantial evidence that a defendant qualifies for a drug court program and cannot support a downward departure under § 921.0026(2)(m). The trial court's reliance on this mitigator without evidence of drug addiction was error.
[1] A downward departure sentence is invalid if based on a statutory mitigator for participation in a drug court program when there is no evidence that the defendant suffers…
[2] A gambling addiction does not constitute competent, substantial evidence that a defendant qualifies for a drug court program as required by statute.
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“the defendant's offense is a nonviolent felony, the defendant's Criminal Punishment Scoresheet total sentence point's ... are [sixty] points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence”
The statutory requirement for a downward departure under § 921.0026(2)(m), emphasizing the drug court qualification requirement
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Join FLexlaw to unlock all legal intelligenceKutz embezzled a large sum of money over time from her employer, motivated in part by gambling addiction and accumulated debts. Her presentencing scor…
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The State challenges the trial court’s imposition of a downward departure sentence following Kutz’s no contest plea to one count of grand theft of more than $100,000. Because the trial court based its departure sentence on a mitigator specific to participation in drug court when there' was no evidence presented to support that Kutz suffered from a drug-related addiction, we reverse.
Kutz embezzled a large amount of money over time from the company where she worked, possibly due in part to her gambling and accumulated debts. Kutz scored fifty-six points and a minimum of twenty-one months in prison on her presentencing scoresheet. At sentencing, she argued for sentence mitigation based on section 921.0026(2)(e), (j), and (m), Florida Statutes (2012). The trial court specifically found that subsections (e) and (j) were not applicable to the mitigation of her sentence but determined that subsection (m) did apply. That subsection allows for a downward departure sentence where
[t]he defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Scoresheet total sentence point's ... are [sixty] points or fewer, and the court determines that the defendant is amenable to the services of a postadjudi-catory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence.
§ 921.0026(2)(m) (emphasis added).
Ignoring the portion of • section 921.0026(2)(m) that requires the defendant be a candidate for a drug court program, the trial court accepted Kutz’s argument and sentenced her to a twenty-one-month prison sentence, suspended and to be served on twenty-four months of community control followed by a twenty-year probationary term with a restitution repay*382ment schedule and completion of a twelvemonth gambling program.
The State maintains that this sentence constitutes an invalid downward departure sentence1 that is not supported by competent, substantial evidence where Kutz does not qualify for a drug court program and her only possible addiction relates to gambling. We agree.
A possible gambling addiction does not provide competent, substantial evidence that Kutz qualified for a drug court program as required by the statute and cannot support the use of subsection (m) as a basis for a downward departure of her sentence. See State v. Barnes, 753 So.2d 605, 607 (Fla. 2d DCA 2000). Despite Kutz’s argument to the contrary, the State sufficiently preserved its objection and put the trial court on notice of the error prior to the imposition of the sentence, see id,., and the trial court rejected all of her other requested bases for sentence mitigation. Accordingly, we reverse the downward departure sentence and remand for resen-tencing in accordance with this opinion.
Reversed and remanded.
ALTENBERND and CASANUEVA, JJ., Concur.
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Citator
Cited By
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State v. Nicolaus Morris, 170 So. 3d 134 (Fla. 2d DCA 2015)…asked to state a basis for the downward departure, the court replied “lack of prior record.” A downward departure occurs-when a prison sentence is indicated on a scoresheet but the court imposes a suspended prison term and probation. State v. Kutz, 157 So. 3d 380, 382 n. 1 (Fla. 2d DCA 2015) (citing State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004)). Downward departure sentences are improper when based solely on factors that are already accounted for in the sentencing [*136] guidelines. State v. Sachs, 52…
Authorities Cited
- State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000)
- State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004)