State v. Holsey, 1D04-3138.
| Decision Date | 19 August 2005 |
| Docket Number | No. 1D04-3138.,1D04-3138. |
| Citation | 908 So.2d 1159 |
| Parties | STATE of Florida, Appellant, v. Terry L. HOLSEY, Appellee. |
| Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellant.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellee.
The state challenges the downward departure sentence imposed following Terry Levon Holsey's entry of an open no contest plea to charges of sale of cocaine and possession of cocaine. The offenses were committed during an undercover drug sting operation; the buyer was an undercover officer. The trial judge gave five grounds for a downward departure sentence. Because we agree with the State that all five grounds given to support the downward departure were improper, we reverse.
The fact that Holsey suffers from addiction to controlled substances is, as the trial judge recognized, specifically excluded as a statutory basis for downward departure. § 921.0026(3), Fla. Stat. (2003). The finding that Holsey was only an accomplice and a relatively minor participant is not supported by competent substantial evidence in the record. That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)(f), Florida Statutes. State v. Grant, 29 Fla. L. Weekly D2722, ___ So.2d ___, 2004 WL 3028212 (Fla. 2d DCA Dec.3, 2004). Regarding downward departure based on prison overcrowding and strained DOC budget, the State correctly notes that no evidence was introduced regarding these factors and the trial judge did not take judicial notice of any type of report or other information to support the reason. Finally, if the State can validly be deemed a victim for purposes of the statutory ground for downward departure, there was no evidence of the "victim's" need for restitution or that a downward departure sentence was necessary in order for restitution to be made. Kirby v. State, 863 So.2d 238 (Fla.2003).
REVERSED and REMANDED.
While I agree with the majority that four of the reasons would not support a downward departure, I must dissent as to reason...
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State v. Murphy
...is not a proper ground in this case for downward departure pursuant to section 921.0026(2)(f), Florida Statutes.” State v. Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005); see also State v. Grant, 912 So.2d 321, 322 (Fla. 2d DCA 2004) (holding that undercover officer involved in sting oper......
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State v. Fureman, 5D12–2778.
...the police—acting undercover—initiated the contact. State v. Murphy, 124 So.3d 323, 331 (Fla. 1st DCA 2013) (citing State v. Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005) ; State v. Grant, 912 So.2d 321, 322 (Fla. 2d DCA 2004) ). In addition to resting on an improper factual basis, the t......
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State v. Saunders
...to establish a preponderance—supporting the court's statements. There was no evidence of jail overcrowding. See State v. Holsey , 908 So. 2d 1159, 1161 (Fla. 1st DCA 2005) (concluding that the court's departure "based on prison overcrowding and strained [Department of Corrections] budget" w......
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State v. Milici, Case No. 5D16–2353
...to his charges for sale of controlled substances simply because he sold narcotics to a confidential informant. See State v. Holsey , 908 So.2d 1159, 1161 (Fla. 1st DCA 2005) (reversing downward departure based upon section 921.0026(2)(b) where defendant sold narcotics to an undercover offic......