THOMAS J. PROFETTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2015-12-30
No. 2D14-3482
ALTENBERND and SLEET, JJ., Concur.
198 So. 3d 684 Florida District Court of Appeal, Second District (2015) Positive Treatment

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Synopsis

Thomas Profetto appeals the denial of his Rule 3.850 postconviction relief motion challenging his conviction for attempted first-degree murder and 35-year sentence with 20-year mandatory minimum. The court affirmed most claims but reversed and remanded claim thirteen regarding ineffective assistance of counsel for failure to object to a codefendant's unequal lesser sentence.


Holding

While the trial court could not impose a sentence below the mandatory minimum under the 10-20-Life statute, it could have departed downward from 35 years based on a codefendant's lesser sentence if the defendants were equally culpable with no great disparity in criminal records. Profetto's claim was facially insufficient for lack of specifics about the codefendant's charge, sentence, and criminal history, but he is entitled to amend the claim.


Headnotes

[1] A defendant is entitled to an opportunity to amend a facially insufficient postconviction claim if the amendment can be made in good faith.

[2] A trial court may depart downward from a sentence based on a codefendant's lesser sentence if the two defendants were equally culpable and had no great disparity in their…

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Key Quotes

“the court could have departed downward from the thirty-five-year sentence based on a codefendant's lesser sentence if the two were equally culpable and there was not a great disparity in their criminal records”

Establishes the legal standard for downward sentence departure based on codefendant disparity

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Facts & Procedural History

In December 2009, Profetto was convicted of attempted first-degree murder and sentenced to 35 years in prison with a 20-year mandatory minimum. The cr…

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Opinion of the Court
SILBERMAN, Judge.

SILBERMAN, Judge.

Thomas J. Profetto seeks review of the orders denying his motion for postconvic*685tion relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all claims with the exception of part of claim thirteen.

In December 2009, Profetto was convicted of attempted first-degree murder and sentenced to thirty-five years in prison with a twenty-year mandatory minimum. At trial, the State presented evidence that Profetto, Jevon Gibson, and Tatijana Dimic formed a plan to rob another friend by ambushing him at a staged break-down of Dimic’s automobile. The plan did not unfold as expected, however, and Profetto and Gibson ended up charging the victim’s vehicle on foot while firing numerous shots at it. Dimic testified against Profetto in exchange for a sentence of three years in prison followed by twelve years of probation. Gibson did not testify at Profetto’s trial, and the trial transcript does not reveal the outcome of Gibson’s case.

In claim thirteen, Profetto asserted that trial counsel was ineffective when he failed to suggest a downward departure sentence and “to object to the unequal and lesser sentence of his .equally culpable co-defendant at sentencing, who was subject to the same sentencing enhancement as Defendant.” Profetto asserted that the trial court was under the erroneous impression that it could not depart downward on this basis. The postconviction court failed to address this portion of the claim.

We note that the trial court would not have been able to impose a sentence less than the mandatory minimum under the 10-20-Life statute. See State v. Bray, 174 So.3d 488, 489 (Fla. 4th DCA 2015). However, the court could have departed downward from the thirty-five-year sentence based on a codefendant’s lesser sentence if the two were equally culpable and there was not a great disparity in their criminal records. See Sanders v. State, 510 So.2d 296, 298 (Fla.1987); Marchetta v. State, 766 So.2d 1126, 1126 (Fla. 2d DCA 2000).

Profetto’s claim is facially insufficient insofar as it does not offer any specifics regarding the codefendant’s charge, sentence, or prior criminal history. That said, Profetto is entitled to an opportunity to amend this facially insufficient claim. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Accordingly, we reverse the denial of this claim with directions for the court to afford Profetto leave to amend if he can do so in good faith.

• Affirmed in part, reversed in part, and remanded.

ALTENBERND and SLEET, JJ., Concur.


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