Banks v. State
| Decision Date | 15 April 1999 |
| Docket Number | No. 93,469.,93,469. |
| Parties | Donald B. BANKS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Frank Louderback of Louderback and Helinger, St. Petersburg, Florida, for Petitioner.
Robert Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, and Erica M. Raffel, Assistant Attorney General, Tampa, Florida, for Respondent.
We have for review State v. Banks, 712 So.2d 1165 (Fla. 2d DCA 1998), wherein the district court certified:
What factors must be proven by a preponderance of the evidence to establish that the need for payment of restitution outweighs the need for a prison sentence to justify a downward departure sentence?
Id. at 1166-67. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer as explained below and quash Banks.
The defendant, Donald Banks, on November 9, 1996, was working in the yard outside his house when a young neighbor, Mark Kotila, sped by in an automobile. The following then allegedly transpired:
Mr. Banks yelled, "Slow down." The victim then extended his middle finger and yelled, "F___ you," at which time Mr. Banks proceeded down to the victim's house [two houses down the street] where there was a further altercation resulting in these injuries to Mr. Kotila.
As a result of the altercation, Kotila sustained a permanent injury—i.e., an eye socket was damaged and repaired with a metal plate. Banks was charged with aggravated assault and entered a plea of no contest based on the understanding that he would receive probation.
At sentencing, the victim and his family objected to probation. They said that they would prefer that Banks be sent to prison even if this meant that Kotila would receive no restitution. The court accepted Banks' plea, withheld adjudication, and sentenced him to four years' probation with the condition that he complete anger management school and make restitution to the victim. This sentence was a down-ward departure from the median recommended guidelines sentence of sixty-eight months' imprisonment.1 The court explained: "The need for payment of restitution to the victim outweighs the need for a prison sentence." The State appealed the downward departure sentence, and the district court reversed:
In view of the opposition by the victim and the prosecutor to the departure, we conclude that no factors, shown by a preponderance of the evidence, reasonably justify a finding here that the need for restitution outweighs the need for a prison sentence. We also note that, even though a restitution order was entered, the trial court made no finding of Banks' ability to pay restitution, as we held to be necessary in State v. Baker, No. 96-05191 (Fla. 2d DCA June 5, 1998).
Banks, 712 So.2d at 1166. The court certified the above question. Banks contends that the downward departure sentence was proper. We agree.
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). Legal grounds are set forth in case law and statute,2 and facts supporting the ground must be proved at trial by "a preponderance of the evidence."3 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 court applied the right rule of law and if competent substantial evidence supports its ruling.4 Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight.5 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.6 In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors.7 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.8 Discretion is abused only where no reasonable person would agree with the trial court's decision.9
Section 921.0016, Florida Statutes (1995), addresses departure sentences and expressly states that the need for restitution may be a valid ground for departure:
§ 921.0016, Fla. Stat. (1995). In short, a court may depart downward if in the opinion of the trial judge the need for restitution outweighs the need for imprisonment.
We conclude that in weighing the need for restitution versus the need for imprisonment a court must take into consideration all the relevant factors, including on the one hand both the nature of the victim's loss and the efficacy of restitution, and on the other hand the consequences of imprisonment. While the victim's wishes concerning restitution are relevant, they are not dispositive—it is the judge, not the victim, who must weigh society's competing needs.
In the present case, the trial court applied the right rule of law—as noted above, the need for restitution is a valid ground for departure. See § 921.0016(4)(e), Fla. Stat. (1995). Further, the court's ruling is supported by competent substantial evidence in the record. The court explained its decision to the Kotila family at the sentencing proceeding:
The trial court subsequently addressed Banks' plea and made the following finding: "At this time the Court will accept your plea, recognizing the departure sentence, finding that there is a need for restitution because the medicals and future medicals of the victim in this case may be extremely great." The court concluded in its written order: "The need for payment of restitution of the victim outweighs the need for a prison sentence." The record is replete with evidence supporting this ruling. Numerous witnesses, including Mark Kotila himself, attested to the serious nature of the injury and the need for significant and ongoing medical treatment. This testimony is unrebutted.
The district court discounted this evidence in light of the wishes of the victim and the prosecutor: "In view of the opposition by the victim and the prosecutor to the departure, we conclude that no factors, shown by a preponderance of the evidence, reasonably justify a finding here that the need for restitution outweighs the need for a prison sentence." Banks, 712 So.2d at 1166. The court added: "[T]he trial court made no finding of Banks' ability to pay restitution, as we [have] held to be necessary...." Id. This was error. First, as explained above, while a victim's (or a prosecutor's) wishes are relevant, they are simply one factor to be considered by the trial court. Second, a defendant's ability to pay restitution is a nonissue when the court is weighing the need for restitution versus the need for imprisonment. Section 775.089(6), Florida Statutes (1995), provides that ability to pay shall be considered at the time of enforcement of a restitution order—not at the time when the court is weighing the respective needs.10
Based on the foregoing, we conclude that in departing downward the trial court applied the right rule of law and competent substantial evidence supports its decision. Further, we find no abuse of discretion. We answer the certified question as explained herein and quash Banks. We remand for reinstatement of the downward departure sentence imposed by the trial court.
It is so ordered.
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