State v. Subido, 5D04-3922.

• Decision Date: 03 March 2006
• Docket Number: No. 5D04-3922.,No. 5D04-4228.,5D04-3922.,5D04-4228.
• Parties: STATE of Florida, Appellant/Cross-Appellee, v. Edgar Allan SUBIDO, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

925 So.2d 1052

STATE of Florida, Appellant/Cross-Appellee, v. Edgar Allan SUBIDO, Appellee/Cross-Appellant.

No. 5D04-3922.

No. 5D04-4228.

District Court of Appeal of Florida, Fifth District.

March 3, 2006.

Rehearing Denied April 12, 2006.

COPYRIGHT MATERIAL OMITTED

Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.

Raymond L. Goodman, Altamonte Springs, for Appellee/Cross-Appellant.

THOMPSON, J.

The State appeals Edgar Allan Subido's downward departure sentence. Subido's scoresheet indicated that his lowest permissible sentence was 108 months' incarceration; the court sentenced him to two years' community control and nine years' probation. Finding no legal basis for the reasons given for departure, we reverse and remand for resentencing.

Because of the nature of the crime and the sentence imposed, we submit the following facts: In January 2004, Subido committed sexual battery while he was in a position of familial authority and while his stepdaughter was asleep, committing a first-degree felony in violation of sections 794.011(4)(a) and (8)(b), Florida Statutes (2003).¹ He was 43, and his stepdaughter was a 15-year-old ninth-grader.

The stepdaughter went to bed around ten that night. She left her bedroom door closed when she went to bed. She woke up because Subido was rubbing his fingers against and inside her vagina. She was laying on her back, but rolled over, at which point he apologized, rubbed her shoulder, kissed her head, and left.

Subido admitted in a police interview that he "did digitally penetrate her . . . but that's as far as it went." It was an anniversary of his mother's death, and he had too much to drink. After passing out on a couch, he went upstairs to tell his stepdaughter to do the dishes. She said she was cold, so he "hopped up on the bed and held her." He did not remember clearly, but if his stepdaughter said that [he] had fondled her, then he probably did. He elaborated:

I was rubbing her and I put my hand underneath and started rubbing her there . . . [o]n her stomach and around her legs and stuff like that. Just getting her warm . . . [a]nd I guess that I got between her legs and put my finger in her.

He digitally penetrated her "[p]robably not even a second."

At trial, Subido repeated this explanation with little variation. He conceded he "molested [his] daughter," but backed away from his confession of penetration; because he was drunk, he could not say that he did penetrate her. Although he could not remember exactly what happened, he was certain it lasted less than a second.

Two weeks before trial, the girl's mother relayed a message from Subido. If his stepdaughter did not testify, he could give her $5,000 for a car or something, and they would not have to go to trial. Subido explained that he offered $5,000 because he did not want the girl to have to go through a trial, and he did not want to pay his attorney for trial. On cross examination, Subido conceded he had already paid his attorney. The jury found Subido guilty of sexual battery while he was in a position of familial or custodial authority and while his stepdaughter was physically helpless.

Subido asked for a downward departure sentence. He claimed that his stepdaughter used the event to move closer to a boyfriend and drop out of high school. He also claimed that he had confessed, answered all questions, and cooperated with the court. Furthermore, the offense was committed in an unsophisticated manner because he could have done more to his stepdaughter, but, "upon the victim's awakening and pulling away[,] [Subido] did not use force or coercion or otherwise continue to commit the offense." Finally, he had no criminal record, had been a Marine, and had otherwise "lived as an exemplary citizen."

The State requested nine years' incarceration, near the bottom of the guideline sentence range. The trial court declined, finding that Subido had offered a "reasonable explanation" for the events that night. Also, Subido had military service, worked hard, and showed that he was disappointed in himself. The court found that the crime was an isolated event for which Subido was remorseful. The court decided to impose a downward departure sentence for reasons that were initially unclear:

[C]ircumstances which were associated with this particular event culminated in, which commonly comes before me, whenever you have alcohol involved, whenever you have an emotional situation, this one was celebrating the anniversary of your mother's passing, and the circumstances that can lead to a bad result, which is exactly — To say this is a bad result is an understatement.

* * *

So for those following reasons I find that there's a legal basis for a downward departure in this particular sentence. . . .

Prison is not appropriate in this particular situation. I think it's — there's basis which naturally impact upon the Court's decision, which are not legal basis, which I can't consider, naturally, your life, your background, things of that nature. Sufficient basis just from the facts that are associated with the behavior once this came to light indicate to form the basis. . . . But I think your facts surrounding your behavior after this happened show that you're worthy of the downward departure.

The State objected, noting that there was no evidence that the battery was committed in an unsophisticated matter. The court responded:

Let me just tell you why I think it was committed in an unsophisticated matter. . . .

Unsophisticated fashion, basically it was an event that was fueled by drinking, passing out, going up to the room, I'll say sort of clumsily going through this, expressing shock at his actions at that time. Unsophisticated actions based upon my experience in hearing these cases in court, based upon him not attempting to do anything that I would consider other than make a base attempt at what he succeeded in doing. There was no introduction of alcohol to the child. The child was asleep in bed, he went up there and did that. The circumstances which I have heard at trial, which I've heard through the testimony, all lead to an inescapable conclusion that it was done in an unsophisticated fashion.

(Emphasis added).

The State pointed out that Subido's inebriation could not be the basis for finding a lack of sophistication. The court responded:

Let me be more specific. Separate and apart from any alcohol consumption, the manner in which the crime was committed, the fashion in which it was committed, was unsophisticated in the Court's opinion. I had an opportunity to listen to the facts during trial. The parties discussed this beforehand. Nothing was different from what the State told me had occurred and nothing was different from what the Defense told me had occurred. And Mr. Subido told me exactly what both of you had told me before. So there's no reasonable doubt that's the fashion in which it occurred.

And I heard it, and it impressed me, and I was able to see the witnesses, hear the witnesses speak and had my firsthand impression to look at the witnesses and see the sincerity of their testimony. And there's no doubt in my mind based upon all these cases that I hear on a regular basis that this was done in an unsophisticated fashion.

With the introduction of the alcohol, that enhances to a certain extent beyond the sophistication factor, inasmuch as he was inebriated, there's been no doubt with respect to that aspect of the testimony. And that's why I detail it as being somewhat clumsy in the approach and what transpired. Is [sic] not as though I have not heard these cases before, as far as what people do to molest children, to get children under the influence, to trick children, to deceive children. This was not one of those types of cases. This was, as I say, done in a blatantly unsophisticated fashion.

(Emphasis added).

The court entered an order declaring Subido a sexual predator on 16 November 2004. The State appealed the downward departure sentence, and Subido appealed the order declaring him a sexual predator.

The issue here "is whether the reasons set forth by the trial court as the basis for the downward departure are legally valid and supported by competent, substantial evidence." State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004). We hold that the basis for downward departure was not supported by competent, substantial evidence.

DISCUSSION

The provision of criminal penalties is a matter of predominantly substantive law determined by the legislature. § 921.002(1), Fla. Stat. (2003); State v. Ayers, 901 So.2d 942, 946 (Fla. 2d DCA 2005). Ordinarily, the lowest permissible guideline sentence is "assumed to be the lowest appropriate sentence for the offender being sentenced." § 921.00265(1); Mann, 866 So.2d at 181. A downward departure is prohibited unless circumstances reasonably justify the departure, which must be articulated in writing. § 921.0026(1); 921.002(1)(f); Mann, 866 So.2d at 181, 183; Ayers, 901 So.2d at 944-45; Staffney v. State, 826 So.2d 509, 511 (Fla. 4th DCA 2002). If the trial court does not articulate in writing the basis for departure, the sentence may be affirmed if the court orally pronounced on the record a valid basis for the departure. Mann, 866 So.2d at 181; State v. Thompson, 844 So.2d 814, 815 (Fla. 5th DCA 2003).

To determine whether a downward departure sentence is appropriate, the trial court follows a two-step process. Mann, 866 So.2d at 181; Staffney, 826 So.2d at 511. First, the court must determine whether there is a valid legal ground for the departure sentence, set forth in statute or case law, supported by facts proven by a preponderance of the evidence. Id. The defendant bears the burden of proof. Mann, 866 So.2d at 181. This step 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...