State v. Hudson

• Decision Date: 17 December 2014
• Docket Number: No. 2D13–4843.,2D13–4843.
• Citation: 153 So.3d 375
• Parties: STATE of Florida, Appellant, v. Kenneth HUDSON, Appellee.
• Court: Florida District Court of Appeals

153 So.3d 375

STATE of Florida, Appellant

v.Kenneth HUDSON, Appellee.

No. 2D13–4843.

District Court of Appeal of Florida, Second District.

Dec. 17, 2014.

Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellant.

Peter Lombardo, Bradenton, for Appellee.

Opinion

DAVIS, Chief Judge.

Kenneth Hudson entered nolo contendere pleas to three counts of sale of cocaine and one count each of possession of cocaine, violating license restrictions, and operating a motorcycle without a valid driver's license. His scoresheet indicated a lowest permissible sentence of twenty-one months' prison. But the trial court sentenced him to twenty-one months' prison, suspended, and twenty-four months' probation. At sentencing, the trial court indicated that it was departing downward pursuant to section 921.0026(2)(j), Florida Statutes (2013), which allows for a sentence below the lowest permissible sentence where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” In departing downward, the court only stated, “I don't believe the operation in and of itself was sophisticated enough to come into the category in my mind, okay, that doesn't obviate some section (j) of Florida Statute 921.0026.... So I'm going to depart under that statute.” The State now challenges this sentence, and we reverse.

We initially note that the trial court failed to put its reasons for departing downward into writing. See § 921.002(1)(f) (requiring that “[d]epartures below the lowest permissible sentence established by the code ... be articulated in writing by the trial court judge” and supported by a preponderance of the evidence). The trial court's final judgment only addresses counts three and six, the misdemeanor counts for which Hudson received time served, but it fails to address counts one, two, four, and five, the counts for which the court departed downward. The judgment does incorporate by reference the probation order by a notation to “see separate order of probation for counts 1, 2, 4, 5.” But the probation order also lacks written reasons for the downward departure sentence. However, “[i]f the trial court does not file written reasons, a downward departure sentence may nevertheless be affirmed if the record reflects that the trial court made oral findings on the record at the sentencing hearing which support the sentence.” State v. Naylor, 976 So.2d 1193, 1196 (Fla. 2d DCA 2008). Here, in rendering sentence, the trial court merely stated, “I don't believe the operation in and of itself was sophisticated enough to come into the category.”

The determination of whether this is a valid legal ground for a downward departure “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.” See State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). We conclude that in the instant case the trial court did not apply the correct rule of law and that Hudson failed to present competent, substantial evidence to support the downward departure. See Naylor, 976 So.2d at 1196 (“The defendant bears the burden of presenting competent, substantial evidence supporting the reason for the downward departure.”).

With regard to the correct rule of law, in order to depart downward under subsection (j) of the statute, “it [i]s necessary for there to [be] competent, substantial evidence that (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse.” State v. Butler, 787 So.2d 47, 48 (Fla. 2d DCA 2001). Here, the trial court addressed the sophistication prong of subsection (j) but made no findings that the offenses amounted to an isolated incident or that Hudson had shown remorse. And the record does not support either of these required elements. See id. (“In the present case, there was no evidence supporting the factor that the offense was an isolated incident, the trial court did not make a finding, and there was no evidence that Butler had shown remorse.”).

At the sentencing hearing, Hudson presented the testimony of himself and his girlfriend. Neither testified as to Hudson's remorsefulness other than to say that Hudson sold the drugs so that he could make a nice Christmas for his...