Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3577 _____________________________ STATE OF FLORIDA, Appellant, v. VENTREL RUSH, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Barbara K. Hobbs, Judge. November 20, 2020 MAKAR, J. At issue is the validity of the trial court’s sua sponte decision to substantially reduce the sentence imposed on Ventrel Rush, who engaged in a vicious attack on the victim in his home arising from an on-line sexual hook-up gone bad. The State argues that the “trial court’s idea that the victim was the provoker of this homophobic attack is reprehensible and should not be tolerated.” We agree. Late one evening in September 2018, Rush and his roommate—after communicating with a person who they believed was a female interested in smoking marijuana and engaging in sex—traveled to and parked outside the victim’s apartment. The victim saw both men and communicated to them electronically that he had misrepresented that he was a woman on Tinder®, but that he’d still be willing to engage in sexual activity. Rush and his roommate, now knowing that the victim was a homosexual male, rather than a woman, nonetheless went to the victim’s door, knocked, and sought entry. The victim opened the door, attempted to stop Rush and his roommate from entering, but failed. Chaos ensued. Rush and his roommate immediately shot the victim repeatedly with BB guns (the victim initially believed they were real guns). The victim, who began to fight back, was then pistol- whipped, hit, and kicked, resulting in a gashed forehead and a swollen eye. The victim’s roommates heard the commotion, came to the victim’s assistance, and Rush and his roommate fled, bringing an end to the brutality. Rush was charged with burglary of a dwelling with person assaulted (section 810.02(2)(a), Florida Statutes), aggravated battery with a deadly weapon, (section 784.045(1)(a), Florida Statutes), and aggravated assault with deadly weapon (section 784.021(1)(a), Florida Statutes). He was convicted after jury trial of the burglary charge, simple battery, and simple assault (the latter two because the jury believed the BB guns were not deadly weapons). Based on the guideline scoresheet, Rush’s recommended sentence was a minimum of 48.15 months to a maximum of life in prison. At sentencing, Rush requested a downward departure, claiming the attack was done in an unsophisticated manner and was an isolated incident; the trial judge denied his request. On her own volition, however, the trial court departed downward from the guidelines and sentenced Rush to 11 months and 29 days in county jail (with 28 days’ time served), followed by two years of community control and three years of probation. The trial court’s explanation for this substantial departure was her view that the victim fell within section 921.0026(2)(f), Florida Statutes, which allows a sentencing reduction if the “victim was an initiator, willing participant, aggressor, or provoker of the incident.” The trial judge said that she had sat “through this trial. And I’m not going to comment on it. I think the record speaks for itself. I am going to find that under 921.0026(2)(f), the victim was the initiator or willing participant, aggressor, or provoker of the 2 incident. And it’s supported by the record in this case, and on that basis, I will downward depart.” The State objected, citing caselaw that prohibits departures in similar circumstances because the statutory meaning of “incident” is focused only on the circumstances immediately surrounding the criminal offense itself. The trial judge, however, seemingly concluded that although the victim may not have been a “willing participant” in the attack, he nonetheless was an “initiator” or willing “aggressor or provoker” of the attack. Let the record reflect that the court is not hanging her hat, for lack of a better word, on willing participant. I think [subsection (f)] says the victim was an initiator, willing participant, aggressor or provoker of the incident. And I think that. Again, and the court is not hanging her hat on the willing participant. I think the facts of the case and the record is clear to support that particular downward departure. And based on that, I will downward depart. The net result is that Rush’s sentence was reduced to less than a year in county jail, despite the recommended guidelines range of a minimum of 48.15 months up to life in state prison. On appeal, the State argues that two points mandate reversal. First, the trial court failed to provide a legally valid reason in support of a downward departure. Second, even if the trial court’s reason for departure was valid, it was not supported by competent substantial evidence. We agree that the trial judge’s departure was legally invalid and that no evidence, competent or otherwise, supported her stated rationale. As a general matter, a “trial court must impose, at a minimum, the lowest permissible sentence calculated according to the [Criminal Punishment Code] unless there is a valid reason to impose a downward departure sentence.” Jackson v. State, 64 So. 3d 90, 92 (Fla. 2011); see § 921.0024(2), Fla. Stat. (2020). A trial court “may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026” of the Florida Statutes. § 921.002(3), Fla. Stat. (2020) 3 (emphasis added); see also id. § 921.002(1)(f) (“Departures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.”). As such, a downward departure must be based on conduct specified in section 921.0026, which in this case is limited to subsection (2)(f). To begin, we note that the trial judge disclaimed her initial reliance on the victim being the “willing participant” under subsection (2)(f), which was appropriate. It would be an odd result to conclude that the victim, under the circumstances presented, was a willing participant in his home being burgled and his own shooting and beating. State v. Imber, 223 So. 3d 1070, 1072–73 (Fla. 2d DCA 2017) (“we can find no Florida precedent to support the proposition that a victim of a grand theft can be a ‘willing participant’ in the stealing of his own property”). Next, the trial judge’s stated rationale for departure—that the victim was the “initiator” or “willing . . . aggressor or provoker” of the incident—fares no better. The record reflects no basis for the victim to be considered the “willing . . . aggressor or provoker” of his own brutal beating. The victim was entirely peaceful and engaged in no aggressive or willful acts whatsoever; the attack on him arose solely from Rush’s unilateral decision to confront the victim, forcibly enter his home, and then shoot and beat him. Nor is there any evidence that the victim was the “initiator” of the beating. While it is true that the victim was an amenable participant in the on-line discussions about a sexual hookup, and might be considered a co-initiator of the liaison, the chain of causation was broken when Rush—knowing that the victim was male, not female—nonetheless chose to exit his vehicle, walk to the victim’s front door to confront him, and to thereafter forcibly enter the victim’s home and engage in a vicious physical attack causing serious injuries. The motivating factor of the “incident”—what caused the burglary and battery/assault to occur—was solely Rush’s anger that he had been misled into believing the victim was a female and not a male. The victim was initially misleading as to his gender, but disclosed the truth, leaving Rush and his roommate 4 with a decision to make: peaceably leave despite their anger or act upon their anger by confronting and committing violent acts upon the victim. The “incident” that resulted was due solely to their wrong decision. To put this in perspective, if a potential buyer of a used car learned just before arrival at the seller’s home that the seller misleadingly advertised the car on eBay® as a Maserati when it was a Mazda, the potential buyer—though justifiably angry—would not be justified in breaking into the seller’s home to dispense a beating or receiving leniency in punishment. Our sibling court’s analysis in State v. Morales, 718 So. 2d 272, 273 (Fla. 5th DCA 1998), is instructive on the meaning of the term “incident” in subsection (2)(f). Its facts are similar in many respects to this case: Mr. Morales’ ex-wife invited him to move to Florida from Puerto Rico in order to pursue a reconciliation. Soon after he arrived, Mr. Morales’ ex-wife told him that she no longer wanted to pursue a reconciliation. Thereafter, Mr. Morales came to his ex-wife’s home at a time when he knew she would be alone. When she went to the door, he asked if he could come inside so he could use her telephone to arrange travel reservations to return to Puerto Rico. She was reluctant to let him in but he persuaded her to open the door. Once Mr. Morales was inside the residence he punched his ex-wife in the stomach, strangled her, and forced her to undress by threatening her with a knife. He then sexually battered her. At trial, Mr. Morales admitted they had intercourse but contended that his ex-wife initiated and consented to the encounter. Rejecting Mr. Morales’ version of the events, the jury found him guilty of sexual battery. Id. The recommended guideline sentence for Morales was from 12.25 to 20.42 years in prison, but the “the trial court departed downward from the guidelines and sentenced Mr. Morales to a term of 4 years’ imprisonment followed by 5 years’ probation.” Id. The trial court’s rationale, in part, was that the ex-wife was an “initiator, willing participant, aggressor, or provoker of the incident.” Id. 5 The Fifth District reversed, rejecting the trial court’s rationale and overly broad view of the meaning of the word “incident” in the statute. ∗ It noted that: the trial court was persuaded by argument of defense counsel to apply a broad definition of “the incident” as the term is used in the statute. Instead of considering the incident as being the circumstances immediately surrounding the sexual battery, the trial court viewed the term to include the general and more remote circumstances “out of which the offense occurred.” The trial court considered the ex-wife’s initial efforts to reconcile the parties’ relationship, including her resumption of a sexual relationship, to constitute the “initiation of some activity with [Mr. Morales].” We respectfully disagree with the trial court’s broad definition of the term “incident.” In our view, “the incident” more narrowly refers to circumstances immediately surrounding the criminal offense. Id. Stated differently, the Fifth District determined that the proper statutory focus is on the specific circumstances directly causing the criminal incident itself rather than the general, prefatory, or attenuated circumstances that preceded it. By this measure, the fact that the former wife had persuaded the former husband to move from Puerto Rico to Florida to pursue reconciliation, but changed her mind after his arrival (though having resumed some sexual relations), was deemed legally irrelevant and an impermissible basis upon which to grant a downward departure. The “incident” in question was not the broader context of the couple’s stormy relationship, but the sexual battery itself, which was caused solely by the former husband’s rash and violent actions; the former wife played no causal role in the sexual abuse she endured. Likewise, the victim here can’t be ∗ The statute was numbered as section 921.0016(4)(f) at the time, but later renumbered as 921.0026(2)(f). See § 921.0016(4)(f), Fla. Stat. (1995) (current version at § 921.0026(2)(f), Fla. Stat. (2020)). 6 considered the initiator, aggressor or provoker in causing the “incident” in question, i.e., the precipitous burglary of his home followed by his being shot and beaten. The general and prefatory background communications that led Rush to the victim’s home, including the revelation that the victim was a homosexual male, are no different in kind to the actions of the former wife in Morales that led to her former husband moving to Florida, attempting to renew their relationship, but being rebuffed. The former husband’s anger at the changed circumstances in Morales, like Rush’s frustrated expectations at the victim’s revelations here, were the sole cause of the criminal incident and thereby lack any justification for a downward departure based on subsection (2)(f). Neither the former wife in Morales nor the victim here can be said to have been an “initiator, . . . . aggressor, or provoker” of the physical violence they suffered. REVERSE and REMAND for resentencing within the guidelines. LEWIS, J., concurs; ROBERTS, J., concurs in result. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ashley Moody, Attorney General, and Trisha Meggs Pate and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellant. Charles E. Hobbs, II, Tallahassee, for Appellee. 7