STATE OF FLORIDA

v.

DARIEN A. HAUTER

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2022-2997 LT Case No. 2018-CF-000879-A _____________________________

STATE OF FLORIDA,

Appellant,

v.

DARIEN A. HAUTER,

Appellee. _____________________________

On appeal from the Circuit Court for Citrus County. Mark J. Yerman, Judge.

Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.

Daniel Tibbitt, of Daniel J. Tibbitt, P.A., North Miami, for Appellee.

August 19, 2024

SOUD, J.

The State of Florida appeals the below-guidelines sentence imposed upon Appellee Darien A. Hauter for his serious crimes. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App.

2

P. 9.140(c)(1)(M). We reverse and remand for a new sentencing hearing, concluding the trial court erred in imposing a sentence below the minimum required by the Florida sentencing guidelines.

I.

Hauter was charged via information with nine crimes: burglary of a dwelling with battery; three counts of kidnapping; intimidating a witness; felony fleeing or attempting to elude; two counts of child abuse without great bodily harm; and violation of condition of pre-trial release. The charges resulted from an August 2018 episode that saw him break into his estranged wife’s residence, force her and their two children into his vehicle, and flee from law enforcement—a flight that ended in a standoff with law enforcement in the presence of his children. At the time of this charged conduct, Hauter was out on bond for the prior battery and strangulation of his wife. More specifically, while their divorce case was pending, and after an escalating pattern of conduct, Hauter broke into his wife’s residence by kicking in the door. After smashing his wife’s cell phone as she tried to call 911, he grabbed their two children and forced them and his partially-clothed wife into a car, demanding his wife drive the car away from her residence. As she did so, Hauter’s wife spotted law enforcement, stopped the car, and jumped out for help. Hauter then got into the driver’s seat and fled with his two children still in the car. During law enforcement’s pursuit of Hauter, he barely missed hitting oncoming cars as he drove the wrong way into oncoming traffic, at times running a red light and exceeding speeds of 60–70 miles per hour. Law enforcement officers deployed spike strips to deflate the car’s tires, after which Hauter continued to drive approximately a quarter of a mile before stopping, placing his one-year-old child in his lap, and imploring law enforcement officers to shoot him (presumably Hauter and not the child). After approximately ten minutes, Hauter exited the car and was taken into custody. During the first stage of proceedings below, Hauter pleaded guilty to the crimes and was sentenced to four life sentences for counts I-IV and the statutory maximum on each of the remaining

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felony counts. However, for reasons not pertinent here, the case was remanded to the trial court for further consideration. Ultimately, the State agreed to allow Hauter to plead nolo contendere to modified charges, including: burglary of a dwelling with battery; two counts of false imprisonment (as lesser included offenses of kidnapping); felony fleeing or eluding; two counts of child abuse without great bodily harm; and violation of condition of pre-trial release.¹ The plea called for a maximum sentence of 15 years in prison. The sentencing guidelines called for a minimum sentence of 94.425 months (just shy of eight years). There was no agreed-upon, jointly recommended sentence as part of Hauter’s plea to the trial court. The State argued for ten years in prison followed by probation. Hauter sought supervised release. At the conclusion of the sentencing hearing, and over the State’s objection, the successor judge sentenced Hauter to two years of community control, followed by fifteen years of probation. The trial court articulated its reasons that it believed permitted a downward departure sentence, including: (i) a legitimate, uncoerced plea bargain; (ii) the victim was an instigator or willing participant of the incident; (iii) Hauter showed remorse for his crimes; (iv) Hauter’s emotional stability “is not the greatest, . . . though it doesn’t fit specifically into a mental health type problem that would be a downward departure itself;” (v) Hauter had been in the community for thirteen months pending resentencing and had abided by the rules of pretrial release set for him; and (vi) Hauter had previously served 39 months of a life sentence and “lived with that for a number of years.” This appeal by the State followed.

II.

A.

Florida’s Criminal Punishment Code, set forth in Chapter 921, Florida Statutes, applies to all non-capital felonies committed

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on or after October¹, 1998. See § 921.002, Fla. Stat. (2018). The Florida Legislature enacted the Code “to make the best use of state prisons so that violent criminal offenders are appropriately incarcerated.” § 921.002(1), Fla. Stat. Consistent with its stated purpose, the Florida Legislature has declared: The Criminal Punishment Code embodies the principles that: (a) Sentencing is neutral with respect to race, gender, and social and economic status. (b) The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment. (c) The penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense. (d) The severity of the sentence increases with the length and nature of the offender’s prior record.

. . . . (i) Use of incarcerative sanctions is prioritized toward offenders convicted of serious offenses and certain offenders who have long prior records, in order to maximize the finite capacities of state and local correctional facilities. § 921.002(1)(a)–(d), (i), Fla. Stat. Thus, as the Code expressly provides, while rehabilitation is a desired goal of sentencing, it is “subordinate” to the “primary purpose” to punish the offender “commensurate with” his crime and criminal record. See id. Just punishment of a criminal ensures (i) the criminal’s payment of the debt owed to the victim(s) of his crime and society more broadly, as well as (ii) the protection of victims and the public by (a) incapacitating those acting with

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dangerous criminal intentions and (b) deterring other would-be criminals from embarking upon the same felonious path as those who have gone before them. Trial courts’ adherence to these principles, as required by their oath, protects all citizens’ rights and freedoms “endowed by their Creator,” see The Declaration of Independence, and secured by the state and federal constitutions upon which our ordered liberty is constructed.

B.

Within this context, and to serve these ends, the Code establishes sentencing guidelines that provide a minimum sentence a trial court must impose. See § 921.002, et seq., Fla. Stat.² While the sentencing guidelines set forth the minimum required sentence, a trial court remains free to “impose a sentence up to and including the statutory maximum for any offense, including an offense that is before the court due to a violation of probation or community control.” § 921.002(1)(g), Fla. Stat. A trial court is permitted to impose a sentence below that contemplated by the Code “only when circumstances or factors reasonably justify the mitigation of the sentence,” § 921.002(1)(f), Fla. Stat., and in a manner consistent with section 921.0026, Florida Statutes. Thus, the Code establishes a presumption that a sentence within the guidelines is to be imposed by the trial court— and this presumption is a strong one since a downward departure sentence “is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (emphasis added). A defendant seeking a sentence that departs below the guidelines must establish by a preponderance of the evidence the existence of an asserted mitigating circumstance or factor. See § 921.002(3), Fla. Stat. Section 921.0026 lists fourteen mitigating factors. See § 921.0026(2)(a)–(n), Fla. Stat. The list is not

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exhaustive, as the statute expressly states that the “[m]itigating factors to be considered include, but are not limited to, those listed in [section 921.0026(2)].” See § 921.0026(1)–(2), Fla. Stat.; see also State v. Kahl, 333 So. 3d 809, 811 (Fla. 1st DCA 2022). A trial court may consider mitigating circumstances not expressly listed in the statute “so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” Id. For the trial court, imposition of a departure sentence involves a two-step analysis. See Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). First, the trial court must determine whether it can depart—that is, whether a legal basis exists for the departure sentence that has been established by a preponderance of the evidence. See id. When a valid and supported legal ground exists to permit a departure sentence, the trial court must determine whether it should depart—that is, whether a departure sentence is the “best sentencing option” in a given case. See id. In making this determination, the trial court is guided by the Code, the sentencing guidelines, and the expressed purposes for criminal sanctions undergirding Florida law. When the trial court imposes a sentence below the minimum sentence contemplated by the Code, section 921.002 requires—twice—that the judge enter a written order articulating the departure sentence and the reasons therefor. See §§ 921.002(1)(f) and 921.002(3), Fla. Stat.³

C.

Our review of a downward departure sentence presents a mixed question of law and fact. Regarding the first step in the trial

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court’s analysis (whether the law allows the trial court to impose a departure sentence), the trial court’s legal conclusions are reviewed de novo, while we review the trial court’s factual findings for competent, substantial evidence. See State v. Avery, 384 So. 3d 321, 324 (Fla. 5th DCA 2024). Second, if the trial court properly found it can depart from the minimum provided by the sentencing guidelines, we must determine whether the trial court abused its discretion in doing so, an evaluation which requires consideration of the totality of the circumstances. See id. Here, our analysis concludes with the first consideration. The trial court erred when it determined that Florida law permitted a downward departure sentence. The trial court articulated six reasons for the departure sentence: (i) a legitimate, uncoerced plea bargain; (ii) the victim was an instigator or willing participant of the incident; (iii) Hauter showed remorse for his crimes; (iv) Hauter’s emotional stability was “not the greatest, . . . though it doesn’t fit specifically into a mental health type problem that would be a downward departure itself;” (v) Hauter had been in the community for thirteen months pending resentencing and had abided by the rules of pretrial release set for him; and (vi) Hauter had previously served 39 months of a life sentence and “lived with that for a number of years.” The first three reasons articulated by the trial court are statutory mitigating factors identified in section 921.0026; the remaining three are non-statutory mitigating circumstances not expressly identified by the Code. None of the three statutory reasons is supported in the record. Further, the three nonstatutory reasons are insufficient to permit a departure sentence. Pertinent to the first three factors considered by the trial court, section 921.0026 provides in part: (2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: (a) The departure results from a legitimate, uncoerced plea bargain.

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. . . . (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.

. . . . (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026(2), Fla. Stat. We consider each mitigating circumstance in turn.

1.

In departing below the minimum required sentence, the trial court found that the departure sentence resulted from a legitimate uncoerced plea bargain. Such finding is erroneous as a matter of law. Of primary importance, the statute provides for mitigating a sentence when “[t]he departure results from a legitimate, uncoerced plea bargain.” See § 921.0026(2)(a), Fla. Stat. (emphasis added). Thus, the plain text of the statute allows for a downward departure when “the departure”—that is, the downward departure sentence itself—results from and is a part of a plea agreement jointly recommended to the trial court by both the State and a defendant. An open plea to a trial court (including one that includes a cap above the minimum sentence called for by the sentencing guidelines) that does not specifically include a departure sentence jointly recommended to the trial court does not constitute a mitigating circumstance permitting a downward departure. See State v. Saunders, 322 So. 3d 763, 766 (Fla. 2d DCA 2021) (“The record clearly reflects that the State did not agree to sentences of time-served; therefore, there was no plea agreement upon which to base the departure sentences.”); see also State v. Geoghagan, 27 So. 3d 111, 113 (Fla. 1st DCA 2009); State v. Pita, 54 So. 3d 557, 560 (Fla. 3d DCA 2011); State v. Brannum, 876 So. 2d 724, 727 (Fla. 5th DCA 2004).

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Here, Hauter tendered his plea to the trial court. There was no agreement with the State as to the sentence to be imposed. The only stipulation that was part of the plea was that the maximum sentence would not exceed fifteen years. This fifteen-year cap exceeded the minimum sentence to be imposed under the guidelines. Indeed, the State argued against a departure sentence during the sentencing hearing and objected to the trial court’s departure from the sentencing guidelines. As a result, the plea tendered by Hauter did not provide a mitigating circumstance permitting departure below the guidelines because the downward departure sentence itself was not the product of a plea agreement jointly recommended to the trial court.