STATE OF FLORIDA, APPELLANT,
v.
ADAM GARY WHEELER, APPELLEE
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A downward departure sentence based on a victim's need for restitution is improper without competent, substantial evidence demonstrating that the victim's need outweighs the need for incarceration.
[1] A downward departure sentence requires written reasons supported by a preponderance of the evidence.
[2] A victim's need for restitution can justify a downward departure sentence only when competent, substantial evidence shows the victim's need for restitution outweighs the…
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with several felonies, violating probation. The trial court imposed a downward departure sentence, citing, in part, the vict…
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The State appeals the trial court’s downward departure sentence imposed on *1119Adam G. Wheeler. Because the reasons for the court’s departure are not supported by competent, substantial evidence, we reverse.
Wheeler was charged with burglary of a dwelling, dealing in stolen property, giving false verification of ownership when conducting a transaction with a pawnbroker, and grand theft. These charges violated Wheeler’s probation in three prior felony cases. 'Under the Criminal Punishment Code, Wheeler’s lowest permissible s sentence was 89.925 months in prison. Over the State’s objection, the trial court conducted plea negotiations with Wheeler, agreeing to impose a downward departure sentence of ten years in prison, suspended on the successful completion of two years of community control and three years of probation. Among other things, the court departed downward on the basis that the victim’s need for restitution outweighed the need for incarceration.
“The primary purpose of sentencing is to punish the offender.” § 921.002(l)(b), Fla. Stat. (2015). A defendant’s minimum sentence is based on the crime that he committed and the points that he earned. Therefore, any departure below the lowest permissible sentence established by the Criminal Punishment Code must be articulated in writing and supported by a preponderance óf the evidence. See id, § 921.002(l)(f) & (3).
A victim’s need for restitution is a valid reason for a downward departure sentence when competent, substantial evidence shows the victim’s need for restitution outweighs the' need for incarceration. See § 921.0026(2)(e), Fla. Stat. (2015). In order to satisfy this test, the defendant must present some evidence of the victim’s need. State v. Naylor, 976 So.2d 1193, 1196 (Fla. 2d DCA 2008); see, e.g., State v. Quintanal, 791 So.2d 23, 24-25 (Fla. 3d DCA 2001) (reversing downward departure sentence where victims lost approximately $200,000, preferred restitution over incarceration, but presented no evidence of need for restitution); State v. Schillaci, 707 So.2d 598 (Fla. 4th DCA 2000) (reversing downward departure sentence based on need for restitution outweighing need for incarceration, where defense counsel failed to present evidence that victims requested restitution, or expressed particular need for restitution). However, the . test for the victim’s need is not the victim’s preference or desire. See Banks v. State, 732 So.2d 1065, 1068-69 (Fla.1999); Quintanal, 791 So.2d at 24-25. Rather, a downward departure is only justified if the harm suffered by the victim as a result of the theft was greater than normally expected, and restitution could mitigate that increased harm. Demoss v. State, 843 So.2d 309, 312 (Fla. 1st DCA 2003). Thus, a downward departure will be reversed where the record does not support a conclusion that there is a pressing need for restitution. See Schillaci, 767 So.2d at 600. In weighing the need for restitution against the need for imprisonment, a sentencing court must also take into consideration relevant factors such as the nature of the loss, the efficacy of restitution, and the consequences of imprisonment. See Banks, 732 So.2d at 1069. In considering the efficacy of restitution, the trial court must evaluate “the power of the restitution plan to restore the victim'to his or her previous -state,” which includes the defendant’s ability to pay restitution and the impact of the restitution plan on the victim. Demoss, 843 So.2d at 312.
In this case, while the victim testified that it would be “nice” if she received restitution for the stolen items, she also acknowledged that the loss did not significantly impact her or her lifestyle. Further, ■ the only evidence supporting Wheeler’s, ability to pay restitution was the testimony of a drug treatment coordinator that “he would hope” that he could place Wheeler in employment that would allow *1120him to pay restitution. Taken together, this evidence falls woefully short of supporting a lawful ground for downward departure.1 For these reasons, we reverse Wheeler’s downward departure sentence and remand for further proceedings. Because the sentence resulted from a plea agreement, Wheeler shall be given the opportunity to withdraw his plea on remand.
REVERSED and REMANDED.
LAWSON, C.J., and EVANDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Lackey, 248 So. 3d 1222 (Fla. 2d DCA 2018)…wer of the restitution plan to restore the victim to his or her previous state," which - 5 - includes the defendant's ability to pay restitution and the impact of the restitution plan on the victim. Demoss, 843 So. 2d at 312. State v. Wheeler, 180 So. 3d 1117, 1119 (Fla. 5th DCA 2015). However, as we emphasized in Naylor, 976 So. 2d at 1196, "[w]hen a downward departure sentence is imposed based on the need for restitution, some evidence of the victims' needs must be presented to the trial court to s…
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State v. Baron Canard Rogers, 250 So. 3d 821 (Fla. 5th DCA 2018)…payment of restitution to the victim outweighed the need for a prison sentence. See § 921.0026(2)(e), Fla. Stat. (2017). In order to satisfy the terms of the statute, "the defendant must present some evidence of the victim's need." State v. Wheeler, 180 So. 3d 1117, 1119 (Fla. 5th DCA 2015). In this case, the defendant failed to present any evidence regarding the loss sustained by the victim; therefore, this ground for departure is not supported by the evidence. The trial court's finding that departure was wa…
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State v. Crossley-Robinson, 275 So. 3d 662 (Fla. 4th DCA 2019)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- State v. Knox, 990 So. 2d 665 (Fla. 5th DCA 2008)
- State v. Ovidio Quintanal, 791 So. 2d 23 (Fla. 3d DCA 2001)
- Ream v. State, 843 So. 2d 309 (Fla. 5th DCA 2003)
- Jenkins v. State, 843 So. 2d 309 (Fla. 5th DCA 2003)
- State v. Naylor, 976 So. 2d 1193 (Fla. 2d DCA 2008)