STATE OF FLORIDA, APPELLANT,
v.
ALGINAVON TERIANO CLEVELAND, APPELLEE

Fla. 5th DCA | 2016-02-26
No. 5D14-4346
TORPY, EVANDER and BERGER, JJ., concur.
185 So. 3d 1290 Florida District Court of Appeal, Fifth District (2016)

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Synopsis

The State appeals downward departure sentences imposed on Cleveland after his no-contest pleas to drug and battery charges. The court reverses, finding the reasons for the departures legally insufficient or factually unsupported, but remands to allow Cleveland to withdraw his plea or be resentenced within sentencing guidelines.


Holding

The downward departure sentences were improper and are reversed. On remand, Cleveland must be given the opportunity to withdraw his plea and proceed to trial, or if he maintains his plea, he must be resentenced in conformance with the Criminal Punishment Code without the downward departure.


Headnotes

[1] A downward departure sentence is not justified merely because the defendant cooperated after their offense was discovered.

[2] Cooperation with law enforcement is a valid ground for a downward departure, but the actions must rise to the level required to justify such a departure.

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Key Quotes

“a downward departure is not justified merely because the defendant cooperated after his offense was discovered”

Establishes that post-offense cooperation is insufficient basis for downward departure

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Facts & Procedural History

Cleveland entered no-contest pleas in two cases to possession of cannabis with intent to sell, criminal mischief, and battery on a law enforcement off…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The State of Florida appeals the downward departure sentences imposed upon Alginavon T. Cleveland following his pleas of no contest in two separate cases1 to the charges of possession of cannabis with intent to sell, criminal mischief, and battery on a law enforcement officer.2 Because the reasons given for the departure sentences are either legally insufficient or not factually supported, we reverse. See State v. Leverett, 44 So.3d 634, 637 (Fla. 5th DCA 2010) (finding home invasion was not isolated because defendant had a prior record which included, a felony conviction for possession of cocaine and misdemeanor convictions for possession of marijuana, possession of drug paraphernalia, and trespass); State v. Stephenson, 973 So.2d 1259, 1264 (Fla. 5th DCA 2008) (finding incident not isolated where defendant had substantial criminal record, and noting, additionally, thát Florida courts have consistently held’ that family support concerns are not valid reasons to depart downward); State v. Subido, 925 So.2d 1052, 1059 (Fla. 5th DCA 2006) (explaining that “[a] downward departure is not justified merely because the defendant cooperated after his offense was discovered”); State v. Munro, 903 So.2d 381, 382 (Fla. 2d DCA 2005) (rejecting a downward departure sentence for a defendant who confessed to the police, lacked a prior record, and garnered the victim’s mother’s support); State v. Ertel, 886 So.2d 423, 425 (Fla. 2d DCA 2004) (determining that “[wjhile cooperation with law enforcement is a valid ground for a downward departure, [defendant’s] action here in not requiring the officers to obtain a search warrant to search'his home and in giving a statement to officers did not rise to the level of cooperation that is required in order to justify a downward departure sentence”); State v. Bell, 854 So.2d 686, 691 (Fla. 5th DCA 2003) (explaining that the defendant has the burden to prove that a crime was resolved as a result of his or her cooperation); State v. Arvinger, 751 So.2d 74, 77 (Fla. 5th DCA 1999) (entering a guilty plea to all charges is not sufficient to constitute cooperation as a mitigating factor); State v. Falocco, 730 So.2d 765, 765 (Fla. 5th DCA 1999) (holding in order to qualify for a valid departure under section 921.0026(j), Florida Statutes, the defendant must establish all three elements: *1292that the offense was committed in an unsophisticated manner, that it was an -isolated incident, and that the defendant has shown remorse).

We note, however,. that Cleveland entered his plea based on the trial court’s promise to impose a downward departure sentence. Accordingly, on reman'd,, he should be given the opportunity to withdraw his. plea and proceed to trial. See State v. Hepburn, 48 So.3d 1001 (Fla. 5th DCA 2010); State v. Reith, 43 So.3d 909, 910 (Fla. 2d DCA 2010). If Cleveland does not wish to withdraw his plea, he should be adjudicated guilty and resentenced in conformance with the Criminal Punishment Code. See Jackson v. State, 64 So.3d 90, 92-93 (Fla.2011) (explaining that “if a trial court on remand resentences a defendant to a downward departure sentence, the trial court must ensure it comports with the principles and criteria prescribed by the Code.”).

. SENTENCES VACATED;, , REVERSED and REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.


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