STATE OF FLORIDA, APPELLANT,
v.
DARIUS Q. JOHNSON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The State appealed a trial court's downward departure sentence imposed on Johnson following his nolo contendere plea to uttering a counterfeit instrument. The appellate court reversed, holding that the trial court's reasons for departing from the recommended guidelines sentence were not supported by competent, substantial evidence, and remanded for a new sentencing hearing where Johnson could withdraw his plea.
The court held that the reasons for departure were not supported by competent, substantial evidence. Defense counsel's arguments alone are insufficient to constitute evidence, and the undisputed facts (that Johnson attempted to cash a fraudulent check and received no financial benefit only because the teller refused) do not support a finding that he was a minor participant.
[1] A trial court must impose a guidelines sentence unless competent, substantial evidence supports a valid reason for departure.
[2] The defendant bears the burden of proving by a preponderance of the evidence that a valid reason for departure exists.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court must impose a guidelines sentence unless the court finds that competent, substantial evidence supports a valid reason for departure.”
Establishes the legal standard for sentencing departures from guidelines
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson pleaded nolo contendere to uttering a counterfeit instrument. His recommended guidelines sentence was 119 months in state prison. The trial co…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Downward Departure Sentence cases and more on FLexlaw
The State appeals from the downward departure sentence imposed on Darius Q. Johnson following his nolo contendere plea to uttering a counterfeit instrument. We reverse because the trial court’s reasons for departure from the recommended guidelines sentence are not supported by competent, substantial evidence.
Johnson’s recommended guidelines sentence was 119 months in state prison.1 The prosecutor requested that the court impose the guidelines sentence because Johnson’s prior record consisted of serious offenses, for which he served twenty years, and the charged offense occurred only two years after his release from prison. Defense counsel represented to the court that departure was warranted because Johnson received no financial benefit from the offense and an uncharged ringleader coordinated the offense in a larger criminal enterprise and provided Johnson with the *1269fraudulent check. Defense counsel also asked that Johnson receive a sentence that would enable him to keep his job. The court, relying on defense counsel’s argument, offered Johnson two years of probation on the basis of section 921.0026(2)(b), Florida Statutes (2014), which states that “[t]he defendant.was an accomplice to the offense and was a relatively minor participant in the criminal conduct.” The State objected to the imposition of a nonstate prison sanction and requested a “full-fledged” sentencing hearing because of the unsubstantiated statements by Johnson and defense counsel. The court acknowledged the State’s position, but continued with the plea colloquy and the imposition of the departure sentence.
A trial court must impose a guidelines sentence -unless the court finds that competent, substantial evidence supports a valid reason for departure. State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000). It is the defendant’s burden to prove by a preponderance of the evidence that a valid reason :to depart exists. State v. Sawyer, 753 So.2d 737, 738 (Fla. 2d DCA 2000).
No testimony or evidence was. presented to support the assertion that Johnson was a minor participant in the offense. As the State argues, defense counsel’s arguments are not evidence. See State v. Pinckney, 173 So.3d 1139, 1140 (Fla. 2d DCA 2015) (noting that the arguments -of counsel are not evidence); State v. Bernard, 744 So.2d 1134, 1135 (Fla. 2d DCA 1999) (“[R]epre-sentations of an attorney alone are insufficient to form a valid basis for departure.”); State v. Silver, 723 So.2d 381, 382-83 (Fla. 4th DCA 1998) (holding that defense counsel’s assertion without supporting evidence was insufficient to establish that the defendant was a minor participant in the offense). The undisputed facts before the court were that Johnson went to the bank and attempted to cash a fraudulent check. He -did not “receive a financial benefit” only because the bank teller refused to ■ .cash the check.. These facts, even if proven, do not support the .reasons for departure. .... .
Therefore, we reverse ■ Johnson’s sentence and remand for a new hearing where Johnson shall be permitted to withdraw his plea. See State v. Teal, 831 So.2d 1254, 1256 (Fla. 2d DCA 2002) (holding that the defendant should be given the opportunity to withdraw his plea because the sentence was the result of an agreement induced by the trial court). If Johnson declines'the opportunity to withdraw his plea, the sentencing court must impose a guidelines sentence. See State v. Licea, 707 So.2d 1155, 1157 (Fla. 2d DCA 1998).
Reversed and remanded for further proceedings.
NORTHCUTT and KHOUZAM, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Milici, 219 So. 3d 117 (Fla. 5th DCA 2017)…few cases have expanded on what circumstances make one’s participation in criminal activity “relatively minor.” Furthermore, Milici offered no testimony or other evidence supporting the trial court’s departure. on this ground. See State v. Johnson, 197 So. 3d 1268, 1269 (Fla. 2d DCA 2016) (reversing downward departure [*123] where “[n]o testimony or evidence was presented to support the assertion that [defendant] was a minor participant in the offense”). Regardless, we disagree that one who obtains a fraudul…
-
State v. Kunkemoeller, 333 So. 3d 335 (Fla. 1st DCA 2021)…Kunkemoeller was a major, long-term participant without whom the scheme could not have been carried out. The trial court’s departure based on section 921.0026(2)(b) was not supported by competent, substantial evidence. See, e.g., State v. Johnson, 197 So. 3d 1268, 1269 (Fla. 2d DCA 2016) (reversing downward departure sentence based on section 921.0026(2)(b) where “[n]o testimony or evidence was presented to support the assertion that [the defendant] was a minor participant in the offense”). B. Non-Statutory…
-
Beasley v. State (Fla. 2d DCA 2023)…minor participant in the criminal conduct." The State contends that competent, substantial evidence does not support this departure reason. The State relies on cases such as State v. Milici, 219 So. 3d 117 (Fla. 5th DCA 2017), and State v. Johnson, 197 So. 3d 1268 (Fla. 2d DCA 2016). In Milici, at issue was the sentencing for robbery with a weapon and aggravated assault with a deadly weapon. 219 So. 3d at 119. The Milici court determined that the defendant was not a minor participant and explained, "[W]e d…
Authorities Cited
- State v. Bernard, 744 So. 2d 1134 (Fla. 2d DCA 1999)
- State v. Silver, 723 So. 2d 381 (Fla. 4th DCA 1998)
- State v. Licea, 707 So. 2d 1155 (Fla. 2d DCA 1998)
- State v. Sawyer, 753 So. 2d 737 (Fla. 2d DCA 2000)
- State v. Teal, 831 So. 2d 1254 (Fla. 2d DCA 2002)
- State v. Henderson, 766 So. 2d 389 (Fla. 2d DCA 2000)
- State v. Pinckney, 173 So. 3d 1139 (Fla. 2d DCA 2015)