THE STATE OF FLORIDA,

v.

DUANE LAMAR JONES,

Third District Court of Appeal State of Florida

Opinion filed February⁹, 2022. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D20-1220 & 3D20-1302 Lower Tribunal No. F19-13935 ________________

The State of Florida, Appellant/Appellee,

vs.

Duane Lamar Jones, Appellee/Appellant.

Appeals from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellant/appellee.

Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellee/appellant.

Before EMAS, SCALES and GORDO, JJ.

EMAS, J.

2

INTRODUCTION

The State appeals a downward departure sentence imposed by the trial court following defendant’s trial and conviction on the charges of burglary of an occupied dwelling and violation of a domestic violence injunction. The defendant cross-appeals, contending the trial court erred in denying his motion for judgment of acquittal as to the burglary charge.

We affirm without discussion the defendant’s cross-appeal and, for the reasons that follow, we reverse the trial court’s downward departure sentence.

FACTS AND BACKGROUND

The defendant was convicted in February 2020 following a trial, and was originally scheduled to be sentenced on March¹¹, 2020. Under the Criminal Punishment Code Scoresheet, Florida Rule of Criminal Procedure 3.992, the lowest permissible sentence for defendant was twenty-one months’ state prison (and a statutory maximum of fifteen years’ state prison). However, after a delay in the sentencing date, and the onset of COVID- 19, the defendant sought a downward departure of two years’ community control followed by three years’ probation, on the basis that “Mr. Jones should not be sentenced to incarceration in order to prevent the spread of COVID-19” and that “incarcerating Mr. Jones would endanger the health of

The State countered that the existence of a pandemic (and the potential for increased transmissibility within the confines of a jail or prison setting) was by itself legally inadequate to support a downward departure. The State suggested, as an alternative, deferring defendant’s surrender to a date when the spread of COVID-19 did not present a heightened risk of transmission. The State also contended that the father’s testimony about his son’s high blood pressure was not competent substantial evidence to support a downward departure sentence. Although the trial court did note the testimony of defendant’s father, the trial court did not rely upon it as a basis for its downward departure

1 The trial court expressly rejected the other two bases asserted by defendant in support of his motion for downward departure: that defendant lacked the capacity to understand the burglary statute, and the legislative intent of the burglary statute. These are not at issue here.

So for the following reasons, the Court is going to find that, given all of the circumstances presented, the fact that the Covid virus is so rampant, and continues to be so rampant in the county jail and in the prison, that I find that those circumstances do justify my departing downward from the sentencing guidelines.

ANALYSIS AND DISCUSSION

Section 921.0026, Florida Statutes (2013), entitled “Mitigating Circumstances,” is part of Florida's Criminal Punishment Code. It establishes guidelines for imposing downward departure sentences, and

§ 921.0026(1), Fla. Stat. (2013). Because the statutory list of mitigating circumstances is not exclusive, Florida courts have held that a basis for downward departure will be upheld if there is competent substantial evidence to support the stated basis, so long as the purported basis for departure is consistent with legislative sentencing policies and is not otherwise prohibited. State v. Hodges, 151 So. 3d 531 (Fla. 3d DCA 2014); State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013). Our Supreme Court has described the proper analysis to be engaged in by a trial court considering a downward departure, and an appellate court’s corresponding scope and standard of review of the trial court’s decision: A trial court's decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). . . . This aspect of the court's decision to depart is a mixed question of law and fact and will be sustained on review if the

Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step²), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion.

Banks v. State, 732 So. 2d 1065 (Fla. 1999). The question presented is whether the articulated basis for the downward departure is legally valid, is consistent with legislative sentencing policies, and is supported by competent substantial evidence. See Hodges, 151 So. 3d at 534 (holding: “While a trial court may depart for a reason other than those set forth in section 921.0026(2), it may only do so if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited”); State v. Cosby, 313 So. 3d 903, 905 (Fla. 2d DCA 2021) (noting that the reason for a departure sentence must be supported by competent, substantial evidence, and must be consistent with legislative sentencing policies and not otherwise prohibited); Bowman, 123 So. 3d at 109 (same). In State v. Saunders, 322 So. 3d 763, 767 (Fla. 2d DCA 2021), our sister court considered whether the trial court properly imposed a downward

Id. We agree with our sister court’s analysis in Saunders. Applying it to the instant case, the trial court’s first articulated basis for departure—that “Mr. Jones has been under supervision of the Court over the past year” is not a valid basis for departure and is inconsistent with legislative sentencing policy.² Jones has been under supervision of the Court over the past year.” It appears undisputed that defendant did not violate his conditions of house arrest. However, to permit a trial court to rely upon this as a basis for

CONCLUSION

We hold that the trial court’s basis for a downward departure sentence was inconsistent with legislative sentencing policy and was not supported by competent substantial evidence related to the defendant’s individual health

a downward departure sentence would, in effect, serve as an end-run around existing statutory law and case law holding that a defendant is not entitled to receive credit, against his incarcerative sentence, for time spent on house arrest. See § 921.161(1), Fla. Stat. (2020) (providing in relevant part: “A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.”); Fernandez v. State, 627 So. 2d 1 (Fla. 3d DCA 1993) (holding defendant was not entitled, under section 921.161(1), to credit against the incarcerative portion of his sentence for the time he served on house arrest). See also Licata v. State, 788 So. 2d 1063 (Fla. 4th DCA 2001) (same); Myers v. State, 761 So. 2d 485 (Fla. 5th DCA 2000) (same).