State v. Salgado

• Citation: 948 So.2d 12
• Decision Date: 08 November 2006
• Docket Number: No. 3D05-2656.,3D05-2656.
• Parties: The STATE of Florida, Appellant, v. Noe SALGADO, Appellee.
• Court: Court of Appeal of Florida (US)

948 So.2d 12

The STATE of Florida, Appellant, v. Noe SALGADO, Appellee.

No. 3D05-2656.

District Court of Appeal of Florida, Third District.

November 8, 2006.

Rehearing and Rehearing En Banc Denied February 19, 2007.

Appeal from the Circuit Court, Miami-Dade County, Rosa Rodriguez, J Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellant.

Christian Dunham, for appellee.

Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The State of Florida appeals an order granting the defendant's motion for a downward departure from the sentencing guidelines. We reverse.

The defendant and co-defendant entered a business complex by cutting through barbed wire and fencing with a bolt cutter, which apparently activated an alarm.¹ Upon receiving a call that the alarm had been triggered, the manager of the auto sales business responded to the property and confronted the defendants by shining his flashlight on them and ordering them to "freeze." When the defendants realized that the individual with a flashlight was not a police officer, they disarmed him and beat him with the flashlight. The manager sustained several lacerations to his head and a broken knuckle. During this attack, the defendant forcibly removed the manager's Rolex watch and the co-defendant took the manager's necklace. When the police arrived, the defendant attempted to flee, but was found hiding nearby with the manager's Rolex watch in his pocket. When the defendant was arrested, he gave a taped confession and was charged with burglary using a deadly weapon, three counts of burglary of an unoccupied structure, aggravated battery with a deadly weapon, burglary with assault or battery, and attempted felony murder.

Prior to trial, the defendant indicated that he wished to plead guilty to the charges and filed a motion seeking a downward departure from the sentencing guidelines. In support of his motion, the defendant argued that (1) the offenses were committed in an unsophisticated manner and that this was an isolated incident for which he had shown remorse; and (2) at the time of his arrest, he was too young to appreciate the consequences of the offenses. The defendant was twenty-one years old when he committed these offenses and he had one prior adult arrest for the possession of cocaine and cannabis. Attached to the defendant's motion for downward departure was a psychological evaluation, which was performed to determine whether he was an appropriate candidate for boot camp.

The case was set for November 7, 2005 for report re: plea. On November 7, 2005, prior to hearing any evidence or entertaining argument of counsel, the trial court stated, "I will grant the motion for downward departure and have offered a plea to Mr. Salgado of eight years straight prison, with credit for time served." The State asked to be heard on the defendant's motion for downward departure. In voicing its objection to the plea offered by the court and the downward departure the trial court indicated it intended to impose, the State argued that the defendant had not shown remorse, and in fact he appeared disinterested during his confession, yawning several times. The State also argued that the defendant was not too young to understand the consequences of his offense, that this was not his first contact with the criminal justice system, and that the evidence did not support a finding that the crime was committed in an unsophisticated manner. The State also argued that there were aggravating factors that the court should consider, including that the beating and attempted murder of the victim was done in order to avoid arrest, and that the beating was exceptionally violent.

The trial court allowed the State to call the victim to the stand, who testified as to the circumstance of the attack against him and to his injuries. The photographs showing the victim's injuries were admitted into evidence, and the State proffered that a doctor would have testified at trial that one more blow to the victim's head could have killed him. The defendant took the stand and testified that he was remorseful. Upon the conclusion of the defendant's testimony, the trial court stated, "Mr. Salgado, I will grant your motion for downward departure and offer you, as I assured, eight years in state prison as part of the plea." Based upon the defendant's proffer of evidence, the trial court found the defendant guilty and, over the State's objection, ruled that it was entering a departure sentence, sentencing the defendant to eight years in prison with credit for time served. On November 9, 2005, a sentencing order imposing the downward departure sentence was entered, consistent with the trial court's oral ruling.

A trial court's decision whether to depart downward from the sentencing guidelines is a two-part process. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). First, the trial court must determine whether there is a valid legal ground for a downward departure and whether there is adequate factual support for the ground for departure. Second, if there is a valid basis for the trial court to permissibly depart, it must determine whether departure is the best sentencing option for the defendant in the pending case. In other words, the first prong is whether the trial court can legally depart and the second prong is whether the trial court should depart. The trial court's determination regarding the first prong is a mixed question of law and fact, which will be sustained on review if the trial court applied the correct rule of law and there is competent substantial evidence to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion. Id. at 1067-68.

The State argues that the trial court had made up its mind prior to hearing the evidence or considering the aggravating factors, and that neither of the grounds relied upon by the trial court for the downward departure was supported by competent substantial evidence. The two grounds relied upon by the trial court for departure are that (1) the defendant's offenses were committed in an unsophisticated manner and the incident was an isolated incident for which he has shown remorse; and (2) at the time of his arrest, he was too young to appreciate the consequences of his offenses. We will address the latter ground first.

Section 921.0026(2)(k), Florida Statutes (2005), provides that one of the circumstances justifying a downward departure is if "[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense." A defendant's youthful age alone, however, will not justify a departure sentence. There must also be evidence that the defendant 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 1989).

The defendant asserts that the psychological evaluation submitted to the sentencing court provides competent substantial evidence of the defendant's emotional immaturity. The psychological evaluation of the defendant was performed to determine whether the defendant was an appropriate candidate for boot camp, not whether a departure sentence would be appropriate under the circumstances. Although the report states that the defendant is an immature young man, it is conclusory and provides no support or explanation. Further, since the purpose of the evaluation was regarding the appropriateness of boot camp and was not conducted for the purpose of evaluating whether the defendant's maturity level warranted a downward departure, the evaluation did not address whether the defendant's maturity level affected his ability to appreciate the consequences of his actions. In fact, the record is devoid of any evidence which suggests that the defendant lacked the maturity to appreciate the consequences of his actions. Although many cases focus on the youthfulness element of section 921.0026(2)(k), the statute specifically requires that the defendant must also be unable to appreciate the consequences of the offense in order to be eligible for a downward departure sentence. See § 921.0026(2)(k), Fla. Stat. (2005)(allowing for a downward departure when the defendant is "too young to appreciate the consequences of the offense"); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000)(reversing a downward departure sentence, explaining both that the defendant was not youthful and that there was no evidence before the trial court to indicate that he could not appreciate the consequences of his offense). Because there was no evidence in the record that the defendant was too young to appreciate the consequences of his offenses, and in fact the record reflects the contrary, we conclude that the trial court erred in granting a departure sentence based upon section 921.0026(2)(k). The defendant was twenty-one years old when he committed these offenses. The record reflects that he graduated high school, was good in math, was an avid reader, was gainfully employed in a position requiring trust and responsibility, is of average intelligence, has no psychological problems, and comes from a good family with supportive parents. Additionally, the record reflects that the defendant often got in trouble at school and was removed to a school for children with behavioral problems. The evidence does not support a finding that the defendant was too young to appreciate the consequences of his actions.

The other basis that the trial court relied upon when it imposed a departure sentence was that the offenses committed by the defendant were committed in an unsophisticated manner and were isolated incidents for which the defendant has shown remorse. This ground for departure, however, is only valid under ...