State v. Licea
| Decision Date | 20 February 1998 |
| Docket Number | No. 96-05295,96-05295 |
| Citation | 707 So.2d 1155 |
| Parties | 23 Fla. L. Weekly D182, 23 Fla. L. Weekly D529 STATE of Florida, Appellant, v. Christopher LICEA, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Assistant Public Defender, Clearwater, for Appellee.
The State of Florida appeals a downward departure sentence imposed on Christopher Licea after Licea pleaded guilty to violations of community control. We reverse.
In February 1995, Licea entered a plea to robbery and was sentenced to four years' probation as a youthful offender. In June 1995, Licea pleaded guilty to the charge of dealing in stolen property and admitted to a violation of probation in the robbery case. The trial court sentenced him to two years' community control in each case.
In December 1996, Licea entered an admission to the violation of community control in both the robbery and dealing in stolen property cases. The State requested a sentence of thirty-six months' incarceration. The sentencing guidelines' range was from a minimum term of 36.75 months to a maximum of 61.25 months in state prison.
Licea received a downward departure sentence of three years' state prison, which was suspended, and one year in the Pinellas County Jail followed by two years' community control. At the sentencing hearing, the trial judge stated the following reasons for the downward departure sentence: (1) Licea's age; (2) the fact that Licea's girlfriend was pregnant; and (3) the fact that he was more of a follower than a leader. The trial court did not file a transcript of the hearing or written reasons for the downward departure.
The failure to file written reasons for a downward departure sentence was addressed recently by the Florida Supreme Court in Pease v. State, 22 Fla. L. Weekly S624, --- So.2d ---- (Fla.1997). In Pease, the supreme court concluded "that once it is established that there were valid reasons for sentencing the defendant below the guidelines explicated at the time of sentencing, that sentence should not be affected by the unilateral mistake of 'an officer of the state.' " Id. at S624, at ----. In this case, the sentencing judge clearly made a mistake by failing to file written reasons for departure. Based upon the holding in Pease, the inquiry in this case must focus on the reasons given by the sentencing judge for departure at the sentencing hearing to determine whether such reasons are valid.
Without taking any evidence at the hearing, the trial court relied upon the above-listed three factors for the downward departure. None of these factors reasonably justify the downward departure.
Regarding age, this court has stated: "The youthful age of an offender is not a valid reason for a departure sentence unless there are other factors present, such as emotional immaturity or lack of intelligence." State v. Evans, 630 So.2d 203, 203 (Fla. 2d DCA 1993). In those cases where age has been considered, it generally has been accompanied by a showing of the defendant's clean record. Even with a clean record, this court has required a greater showing, such as the support of friends and family. See State v. Williams, 637 So.2d 45, 46 (Fla. 2d DCA 1994).
In this case, Licea's age was not accompanied by any other factor except his girlfriend's pregnancy and the fact that he was a follower rather than a leader. Moreover, Licea's prior criminal record is not worthy of consideration for downward departure purposes.
Second, Licea's girlfriend's pregnancy cannot be considered a valid basis for downward departure for several reasons, the most important of which is that it is against public policy. Defendants certainly would...
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State v. Brannum, 5D03-1251.
...years in prison and defendant was sentenced to ten years' incarceration suspended upon completion of probation); State v. Licea, 707 So.2d 1155 (Fla. 2d DCA 1998) (holding that a downward departure sentence was imposed requiring sufficient reason for the departure when the sentencing guidel......
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State v. Salgado
...is emotionally immature or lacks ordinary intelligence. State v. Gilson, 800 So.2d 727, 730 (Fla. 5th DCA 2001); State v. Licea, 707 So.2d 1155, 1157 (Fla. 2d DCA 1998); State v. Ashley, 549 So.2d 226, 226 (Fla. 3d DCA The defendant asserts that the psychological evaluation submitted to the......
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State v. Hunt
...sentence; there must also be evidence the defendant is emotionally immature or lacks ordinary intelligence. State v. Licea, 707 So. 2d 1155, 1157 (Fla. 2d DCA 1998) ; State v. Gilson, 800 So. 2d 727, 730 (Fla. 5th DCA 2001) ; State v. Ashley, 549 So. 2d 226, 226 (Fla. 3d DCA 1989). "[T]he s......
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State v. Silver, 97-3478.
...sentence, he fails to meet the burden of proving a departure factor by a preponderance of the evidence. See State v. Licea, 707 So.2d 1155, 1157 (Fla. 2d DCA 1998)(downward departure factors applied by trial court "were not proven by a preponderance of the evidence because no testimony or e......