State v. Baker, 96-05191
| Decision Date | 05 June 1998 |
| Docket Number | No. 96-05191,96-05191 |
| Citation | 713 So.2d 1027 |
| Parties | 23 Fla. L. Weekly D1369 STATE of Florida, Appellant, v. Victor D. BAKER, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Frank D.L. Winstead, Assistant Public Defender, Clearwater, for Appellee.
The State appeals the downward departure sentence imposed on Victor D. Baker. Baker entered a plea and was adjudicated guilty of aggravated battery. We agree with the State that each of the trial court's five stated reasons for departure is either improper or unsupported by sufficient record evidence. Therefore, we reverse.
First, we conclude that Baker's lack of criminal record is not a valid reason for departure because this fact is considered in calculating the guidelines. See Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988).
Next, we conclude that the remaining departure reasons given by the trial court were not supported by sufficient evidence. A downward departure sentence must be based upon circumstances or factors which reasonably justify mitigation of the sentence. § 921.001(6), Fla. Stat. (1995). Such circumstances or factors supporting a departure sentence must be established by a preponderance of the evidence. Id.
In the present case, the trial court found that Baker was an accomplice to the offense and was a relatively minor participant in the criminal conduct. It also found that the victim was an initiator, willing participant, aggressor, or provoker of the incident. However, there was no credible evidence presented to support these two findings. Therefore, these findings may not be used to support a departure sentence.
In addition, the trial court found that the need for payment of restitution outweighed the need for a prison sentence. This factor was also not supported by a preponderance of the evidence. There was no evidence establishing the amount of restitution or even that the victim requested restitution. In addition, there was no evidence establishing Baker's ability to pay restitution. We hold that there must be evidence of these factors to justify a departure sentence based on the need for payment of restitution.
We recognize that, ordinarily, the defendant's ability to pay restitution need only be considered at the time of enforcement of the restitution order. See § 775.089(6)(b), Fla. Stat. (1995). However, the purpose of sentencing a defendant to a downward departure sentence based on the above departure reason is to reimburse victims for their loss and it necessarily presupposes that restitution can be paid. If the defendant does not have the ability to pay restitution, the purpose of such a departure sentence is defeated.
Based on the foregoing, we certify the following question as being of great public importance:
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?
Finally, the trial court found that the offense was committed in...
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State v. Warner
...Fla. Stat. (1995)(the level of proof to establish a departure sentence is preponderance of the evidence); and State v. Baker, 713 So.2d 1027 (Fla. 2d DCA 1998). One of the grounds for departure given by the trial court in this case was that "the offense was committed in an unsophisticated m......
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Banks v. State
...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......
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State v. Bleckinger
...it does not logically follow that his ability to make restitution in the nearterm future will be possible. Compare State v. Baker, 713 So.2d 1027 (Fla. 2nd DCA 1998) (trial court made no finding of defendant's ability to make restitution); Ibrahim v. State, 687 So.2d 914 (Fla. 4th DCA 1997)......
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State v. Banks, 97-04180
...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). Accordingly, we reverse Banks' sentence and remand for resentencing within the guidelines. Since Banks' sentence was the ......