Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 20, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1820 Lower Tribunal No. 17-18856 ________________ The State of Florida, Appellant/Cross-Appellee, vs. Aristides Quero, Appellee/Cross-Appellant. An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge. Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellant/cross-appellee. Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellee/cross-appellant. Before FERNANDEZ, HENDON and LOBREE, JJ. HENDON, J. The State of Florida appeals from a downward departure sentence imposed on Aristides Quero after his conviction for felony battery with great bodily harm with a weapon. We affirm. The Defendant was charged with one count of aggravated battery with great bodily harm with a weapon. A jury convicted him of the lesser included offense of felony battery. § 784.041, Fla. Stat. (2016). The trial court denied the Defendant’s motion for judgment of acquittal. The guideline sentence indicated a minimum of 31.2 months in state prison as a habitual felony offender. Prior to sentencing, the defense counsel filed a motion for a downward departure sentence arguing that the victim provoked the incident, and was a willing participant in the escalation of the offense. After considering the arguments for and against departure, the trial court granted the defense motion, downwardly departed, and sentenced the Defendant to sixteen months in state prison, followed by two years of community control, followed by three years of reporting probation, a mental health evaluation and treatment, and a probation requirement of 100 hours of community service. The State appeals from the downward departure sentence. The trial court departed from the sentencing guidelines based on section 921.0026(2)(f), Florida Statutes (2012). 1 Competent, substantial evidence must 1 § 921.0026. Mitigating circumstances 2 exist to support a sentencing departure. Hardie v. State, 162 So. 3d 297, 301 (Fla. 2d DCA 2015) (citing Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)). As explained in Banks, A trial court's decision whether to depart from the guidelines is a two- part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect of the court's decision to depart 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 substantial evidence supports its ruling. Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight. Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion. Discretion is abused only where no reasonable person would agree with the trial court's decision. (1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review. (2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: . . . (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident. 3 Banks v. State, 732 So. 2d 1065, 1067–68 (Fla. 1999) (footnotes omitted). In deciding whether to depart from the guidelines, the record shows that the court took into consideration the history of hostility between the parties and the totality of the circumstances surrounding the offense. After questioning the parties at length, the trial court concluded that there was some evidence of provocation by the victim and thus there existed a valid legal ground to depart from the recommended sentencing guidelines. Id. at 1068. Having articulated on the record sufficient evidence in support of the legal ground for a departure sentence, the trial court’s decision to grant the Defendant’s motion at that point was discretionary. Id. On this record we find no error or abuse of discretion, and affirm the downward departure sentence imposed on the Defendant.2 We decline to reach the issues on cross-appeal. Affirmed. 2 We note that the Defendant has finished the prison portion of his sentence (his expected release date was 10/5/2019 followed by two years of community control and five years of probation). As he has completed the incarceration portion of his sentence prior to resolution of this appeal, he cannot be resentenced to additional prison time on these facts. See Regueiro v. State, 619 So. 2d 463, 464 (Fla. 4th DCA 1993) (holding that once a person begins serving a lawfully imposed sentence, he cannot be resentenced for an increased term of incarceration on the same facts). 4