State of Florida v. Rodney Larry Robinson , 149 So. 3d 1199 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-2017
RODNEY LARRY ROBINSON,
Appellee.
_____________________________/
Opinion filed November 6, 2014.
An appeal from the Circuit Court for Hamilton County.
Andrew J. Decker, III, Judge.
Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellant.
Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender,
Tallahassee, for Appellee.
WETHERELL, J.
The State appeals what amounts to a three year county jail sentence for two
first-degree felonies committed by an offender with a lengthy criminal record. The
State contends that the grounds relied upon by the trial court for this downward
departure sentence are not legally valid. We agree. Accordingly, we reverse and
remand for resentencing.
Factual and Procedural Background
The appellee, Rodney Larry Robinson, sold $50 worth of crack cocaine to a
confidential source near a church in Jasper. He was arrested and charged with sale
of cocaine within 1,000 feet of a church (count 1) and possession of cocaine with the
intent to sell within 1,000 feet of a church (count 2).1 Robinson entered an open plea
of guilty to both counts. His Criminal Punishment Code (CPC) scoresheet included
three prior felony drug offenses – trafficking in cocaine, sale of cocaine, possession
of cocaine with the intent to sell – and a prior battery, and it reflected a lowest
permissible sentence of 60.75 months in state prison.
Over the State’s objection, the trial court imposed a downward departure
sentence of 364 days in the county jail followed by 2 years of community control
and 3 years of probation with no credit for the nearly two years that Robinson had
served in the county jail since his arrest. The court did not provide written findings
1
Robinson was also charged with violating his probation in a 2006 cocaine
trafficking case based upon these new law offenses. The record does not contain an
order disposing of the probation violation, but Robinson’s counsel represented at the
sentencing hearing that the parties “reached a resolution to basically just say his
probation was over” because there was apparently an issue as to whether Robinson’s
probation had been terminated.
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to support this downward departure; however, at the sentencing hearing, the court
explained its rationale for the sentence as follows:
In considering an appropriate sentence, in this case, I think
the Court has to be mindful of the legislative policy and
the legislative intent, to -- to deal with this particular
problem [of drug possession and sale], and the scourge of
this problem, as it encroaches upon neighborhoods,
churches, schools in such a way as to provide more serious
damage and harm to the community than would be the
normal case.
At the same time, the Court has to be mindful of the
provisions of chapter 921.0026 and the factors that have
been presented here. It has been the Court’s observation
since taking office that the disposition of cases in our
circuit, especially in our county here, are really totally
different from the way cases are handled in, let’s say Dade
County or Hillsborough or Orange County.
As a Judge, new to criminal matters, I’ve studied and
poured over the advance sheets, and tried to keep up with
every single reported case, so I understand better, not only
the statutory provisions, but their applicability and the way
in which they’re construed by trial courts and appellate
courts. And if this were Dade County, it would not surprise
me to see a sixty year sentence, for what Mr. Robinson has
done.
But we have a different community here, we are -- we live
more, I guess, closer to each other and see each other on a
daily basis and relate to each other in a community. . . .
I think, in trying to weigh and balance, I don’t see that
there’s any mitigating circumstances that would be
warranted by any displays of remorse, because that has to
be in a context of an isolated incident. When you have the
prior matters that are noted here, and you have these two
serious charges, and I would note that one of the previous
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charges, trafficking in cocaine, that was a felony of the
first-degree. And if I was arrested for trafficking in
cocaine and told by my attorney that I would face thirty
years, I think that would be all the isolated circumstance I
would need to fly right. But in your case, it wasn’t, it just
wasn’t.
Since your arrest, well, since the incident for three years,
you’ve not committed any crimes. The sheriff has
indicated by the way he’s administered his jail, and the
way he’s handled you, that he is confident in your behavior
when you’re released. When you’re on work release, he’s
indicated that he trusts that you will comply with the law,
and not do anything to embarrass him. . . . He’s got to be
awfully confident in you, and feel like you are deserving
of this opportunity, this chance.
You did step forward and candidly acknowledge your guilt
and take responsibility for that by taking an open plea
without any bargain, or any conditions. And I think that
shows, together with other things I’ve noted, that you’re at
a point in your life when you want to turn things around.
You want to go down a different path, and you want to
take responsibility for your actions and accept the
consequences.
The Court, in trying to weigh all these different factors,
believes that -- and I’ve kind of backed myself into what
I’m about to say, so I’ll try to explain what I’m doing. But
in order to deal with and avoid any appellate issues on
the Blockburger[2] issues or the McCloud[3] issues, I’m in
my mind, mathematically, I’m treating the -- I’m
accepting [defense counsel’s] argument on that point.[4]
2
Blockburger v. United States, 284 U.S. 299 (1932).
3
State v. McCloud, 577 So. 2d 939 (Fla. 1991).
4
Earlier in the sentencing hearing, defense counsel argued that the 28 points for
the secondary offense of possession with the intent to sell should be removed from
Robinson’s scoresheet because it would violate double jeopardy to punish him for
both the possession and the sale of the same cocaine. The trial judge correctly
4
And that would reduce the minimum sentence permissible,
to 39.75 months, based on my math. Because, if you take
away that 28 points, for the other felony in the first-degree
charge, then that would be -- that would bring you down,
when you take 75% to 39.75. That is approximately 3.3
years.
Mr. Robinson has been in jail for two years. If his case had
been tried promptly, and I don’t ascribe any fault or
circumstance to it not being resolved sooner. Obviously,
with discovery, with requests for continuances, with the
change in prosecutor, with the Court’s own docket and
own calendar issues that contribute to these matters, we
are where we are. And we are resolving things as quickly
as we can, but nevertheless, Mr. Robinson has kind of been
in limbo. Normally, limbo’s for innocent souls, but we’ll
put you in limbo for the sake of discussion. For about two
years, and with the gain time of 15%, that would be about
2.3 years.
This appeal followed.
Analysis
Under the CPC, the lowest permissible sentence calculated in the offender’s
scoresheet is “the minimum sentence that may be imposed by the trial court, absent
a valid reason for departure.” § 921.0024(2), Fla. Stat. (2011); see also §
921.00265(1), Fla. Stat. (2011) (“A departure sentence is prohibited unless there are
mitigating circumstances or factors present as provided in s. 921.0026 which would
rejected that argument based upon McCloud and ruled that “the scoresheet is correct,
as filed, based on the information to which Mr. Robinson pled.” The judge
reaffirmed that ruling at the conclusion of the sentencing hearing and explained that
he had only conceptually deducted the 28 points in his mind in order to “kind of back
into what [he] think[s] works.”
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reasonably justify a departure.”). The trial court “may impose a departure below the
lowest permissible sentence based upon circumstances or factors that reasonably
justify the mitigation of the sentence in accordance with s. 921.0026.” § 921.002(3),
Fla. Stat. (2011). The mitigating factors and circumstances that may be considered
by the trial court in determining whether to impose a downward departure sentence
“include, but are not limited to” those listed in section 921.0026(2). § 921.0026(1),
Fla. Stat. (2011); see also State v. Henderson, 108 So. 3d 1137, 1140 (Fla. 5th DCA
2013) (“The trial court can impose a downward departure sentence for reasons not
delineated in section 921.0026(2), so long as the reason given is supported by
competent, substantial evidence and is not otherwise prohibited.”); McCorvey v.
State, 872 So. 2d 395, 396 (Fla. 1st DCA 2004) (explaining that “the statutory
mitigating circumstances are not exclusive”).
A trial court’s decision to depart from the lowest permissible sentence is a
two-step process: the trial court must first determine whether it can depart (step one)
and then it must determine whether it should depart (step two). See Banks v. State,
732 So. 2d 1065, 1067-68 (Fla. 1999). In step one, the trial court must determine
whether there is a valid legal ground for departure and adequate factual support for
that ground. Id. at 1067. In step two, the trial court must determine whether a
downward departure is the best sentencing option for the defendant. Id. at 1068.
Here, the State contends that the trial court erred in step one because the non-
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statutory grounds relied on by the court for Robinson’s downward departure
sentence are not legally valid. We agree for the reasons that follow.
First, the trial court’s observation that the disposition of criminal cases is
handled differently in Hamilton County than in other areas of the state is not a legally
valid reason for a downward departure. The CPC is a general law that applies
uniformly across the state irrespective of the nature and size of the community in
which the crime was committed. See § 921.002, Fla. Stat. (2011). Moreover, under
the rationale expressed by the trial court, downward departure sentences could
become the norm rather than the exception in Hamilton County and similar
locales. Cf. State v. Thompkins, 113 So. 3d 95, 100 (Fla. 5th DCA 2013) (reversing
downward departure sentence based upon trial court’s observation that the crime
was based upon “anger and stupidity” because those terms are not part of the lexicon
of the CPC, and explaining that “if trial courts are permitted to impose sentences
below the minimum guideline range based on their perception that a crime was
committed out of anger and stupidity, it would be difficult to find many cases that
would not qualify for a departure sentence, thus making departure the rule rather
than the exception”).
Second, Robinson’s lack of criminal activity since his arrest for the charged
offenses is not a legally valid reason for departure. State v. Stephenson, 973 So. 2d
1259, 1264-65 (Fla. 5th DCA 2008) (“That a defendant refrains from criminal
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activity for a short time is an insufficient reason for a downward departure.”); see
also State v. Geoghagan, 27 So. 3d 111, 114 (Fla. 1st DCA 2009); State v. Nathan,
632 So. 2d 127, 128 (Fla. 1st DCA 1994). Moreover, to the extent the trial court’s
statements concerning the sheriff’s “confidence” in Robinson were intended to be
findings that Robinson is rehabilitated and poses no future threat or danger to
society, there is no competent substantial evidence to support such findings.
Third, Robinson’s admission of guilt and entry of an open plea is not a legally
valid reason for departure. See Geoghagan, 27 So. 3d at 113. A defendant’s plea
only provides justification for downward departure when there has been a
“legitimate, uncoerced plea bargain” with the State. Id.; see also § 921.0026(2)(a),
Fla. Stat. (2011). No such plea bargain existed in this case.
Fourth, the potential double jeopardy “issues” referenced by the trial court are
unfounded and do not provide a legally valid basis for the downward departure even
if (as the trial court and the parties appear to assume 5) the two charges against
Robinson are based upon the possession and sale of the same cocaine. See McCloud,
5
The affidavit in support of the arrest warrant, which provided the factual basis for
the plea, suggests that the two charges against Robinson were not necessarily based
upon the same cocaine. The affidavit explains that Robinson “possessed a cigar bag
[sic] which appeared to be full of small bags of crack cocaine and he retrieved $50
of suspected crack from the box and sold it to the CS [confidential source]. He then
asked CS if they wanted to buy a full cookie.” Thus, it appears that count 1 (sale of
cocaine) may have been based upon the $50 of crack cocaine sold to the confidential
source and count 2 (possession of cocaine with the intent to sell) may have been
based upon the other small bags of crack cocaine in the cigar box.
8
577 So. 2d at 939-40 (holding that double jeopardy does not prohibit dual
convictions for possession and sale of the same quantum cocaine); McMullen v.
State, 876 So. 2d 589, 590 (Fla. 5th DCA 2004) (holding that double jeopardy does
not preclude convictions for both sale and possession of the same cocaine within
1,000 feet of a church); see also Thomas v. State, 61 So. 3d 1157, 1158 (Fla. 1st
DCA 2011) (holding that double jeopardy does not preclude convictions for both
sale and possession of the same cocaine within 1,000 feet of a school).
Finally, contrary to Robinson’s tipsy coachman argument on appeal, the
downward departure cannot be justified under State v. Steadman, 827 So. 2d 1022
(Fla. 3d DCA 2002), because there is no evidence of “sentence manipulation” in this
case. Indeed, unlike Steadman which involved a sting operation that continued for
over a month for no legitimate reason except to enhance the defendant’s sentencing
exposure, id. at 1025, this case involved a single drug sale. Moreover,
unlike Steadman, the county jail sentence imposed by the trial court in this case was
well below the 39.75 month prison sentence that Robinson would have been subject
to if he had only been charged with count 1. See id. at 1025-26 (“We emphasize that
our holding is predicated on the fact that the sentence imposed did not go below what
Steadman would have received in the absence of the sentence manipulation.”).
Conclusion
In sum, for the reasons stated above, we reverse Robinson’s downward
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departure sentence and remand for resentencing. See Jackson v. State, 64 So. 3d 90,
93 (Fla. 2011).
REVERSED and REMANDED for resentencing.
PADOVANO, J., CONCURS; SWANSON, J., CONCURS WITH OPINION.
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SWANSON, J., CONCURRING.
I concur in the decision to reverse the trial court’s downward departure
sentence and to remand for resentencing. The trial court’s oral reasons for departing
from the lowest permissible sentence were either legally invalid or not based on
competent and substantial evidence in the record, as Judge Wetherell’s opinion
explains. I write to emphasize that on remand the law does not preclude the trial
court from imposing a downward departure sentence if it provides a legally valid
basis to do so which is supported by the record. As the Florida Supreme Court ruled
in Jackson v. State, 64 So. 3d 90 (Fla. 2011):
Based on our reading of the legislative scheme, nothing within the
[Criminal Punishment Code] precludes the imposition of a downward
departure sentence on resentencing following remand. To be sure, if a
trial court on remand resentences a defendant to a downward departure
sentence, the trial court must ensure it comports with the principles and
criteria prescribed by the Code. However, an appellate court should not
preclude a trial court from resentencing a defendant to a downward
departure if such a departure is supported by valid grounds.
Id. at 93.6
6
Just recently, in Bryant v. State, 39 Fla. L. Weekly S591 (Fla. Oct. 9, 2014), the
Florida Supreme Court described Jackson as being a “narrowly tailored decision”
limited to instances where the trial court imposes a downward departure sentence
under the Criminal Punishment Code, which does not contemplate upward departure
sentences because, generally, the statutory maximum sentence is the highest possible
sentence for any crime. 39 Fla. L. Weekly at S593. In Bryant, however, the supreme
court reviewed the propriety of an upward departure sentence sanctioned by section
775.082(10), Florida Statutes, but which was imposed by the trial court without the
court’s making any written findings to support the upward departure. In such a case,
the supreme court ruled its earlier decisions in Pope v. State, 561 So. 2d 554 (Fla.
11
1990), and Shull v. Duggar, 515 So. 2d 748 (Fla. 1987), still applied to preclude the
trial court, on remand, from again imposing a departure sentence.
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