Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ALONZO CARNES, SR., ) ) Appellant/Cross-Appellee, ) ) v. ) Case No. 2D20-201 ) STATE OF FLORIDA, ) ) Appellee/Cross-Appellant. ) ___________________________________) Opinion filed April 30, 2021. Appeal from the Circuit Court for Manatee County; Stephen L. Dakan, Senior Judge. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant/Cross- Appellee. Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant. SILBERMAN, Judge. Alonzo Carnes, Sr., appeals his convictions and sentences for (1) providing false sex offender information and (2) failure of sex offender to register change of address with the Department of Highway Safety and Motor Vehicles (DHSMV). Because his argument regarding the sufficiency of the evidence has no merit, we affirm the convictions without discussion. As to sentencing, the trial court imposed a downward departure sentence. Carnes contends that his trial counsel was ineffective on the face of the record in presenting one of the statutory mitigators to support a downward departure. The State cross-appeals and contends that the trial court erred in imposing downward departure sentences based on a nonstatutory mitigator. We reverse the downward departure sentences based on the State's cross- appeal and remand for resentencing. This disposition of the cross-appeal renders Carnes' argument on sentencing moot. Carnes' convictions for two third-degree felonies are the result of his establishment of a residence with his girlfriend and his knowing failure to report that residence when he registered as a sexual offender in his birthday month, see § 943.0435(14)(a), (c)4, Fla. Stat. (2018), and his knowing failure to report that residence to the DHSMV within forty-eight hours after the change to his residence, see § 943.0435(4)(a), (9). Carnes' Criminal Punishment Code (CPC) scoresheet indicated that his lowest permissible sentence exceeded the five-year statutory maximum for a third-degree felony. See § 921.0024(2), Fla. Stat. (2018) ("If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, [Florida Statutes (2018),] the sentence required by the [CPC] must be imposed."). The trial court imposed downward departure sentences of a concurrent five years in prison on the two offenses. Carnes contends on appeal that his trial counsel (Counsel) was ineffective at sentencing. Counsel sought a downward departure sentence based on statutory mitigators, including a need for "specialized treatment for a mental disorder that is -2- unrelated to substance abuse," as set out in section 921.0026(2)(d) of the CPC. Counsel asserted that she had retained Dr. Regnier to evaluate Carnes. The doctor had told Counsel that Carnes had undiagnosed bipolar disorder which probably required medication and that Carnes would benefit from talk therapy. Counsel had been unable to obtain a written report from Dr. Regnier because it would take a considerable block of time, ten to twelve hours, to test Carnes due to his low I.Q., and the doctor did not have that block of time allotted. After extensive argument, the trial court determined that although Counsel made a good argument, the argument was not supported by evidence. The relief Carnes seeks is a new sentencing hearing with effective counsel. But because we are reversing Carnes' sentences and remanding for a de novo resentencing on the State's cross-appeal, the disposition of the cross-appeal renders Carnes' sentencing issue moot. On cross-appeal, the State contends that the trial court erred when it sentenced Carnes below the lowest permissible sentence using a nonstatutory mitigator that is not a valid legal ground for departure. Because that mitigator is not consistent with legislative sentencing policy, we agree. After arguing the mental health mitigator at sentencing, Counsel argued a nonstatutory mitigator based on the legislative history of registration requirements for sexual offenders. She argued that the intent was to keep track of offenders and "to protect the kids and people from physical sexual assault," as well as to maintain federal funding. She explained that the registration laws were meant to keep track of offenders and were not a punitive measure. She also argued the facts of this case and asserted -3- that Carnes' actions did not jeopardize the purpose the registration laws were intended to serve. For instance, nothing indicated that he went to any schools or tried to make any contact with children. She further argued that his girlfriend's residence was approved for sexual offenders, that Carnes accurately reported his place of employment, and that Carnes never stopped reporting to the sheriff's office. The prosecutor pointed out that the lowest permissible sentence on the scoresheet was 79.8 months (6.65 years) and that the court could impose up to ten years on the two third-degree felonies with consecutive sentences. With respect to the nonstatutory mitigator, the prosecutor responded that while the requirement to register is a civil penalty for Eighth Amendment purposes, that was unrelated to the situation here. He argued that the legislature has determined that the failure to register is a crime, and that is because "the recidivism rate of sexual offenders is such that we need to know where they are." He asserted that it was "prohibited for this Court to depart based on the idea that [the] civil requirement to register is harsh or [the] civil requirement to register is not that severe or significant of a violation when it is not completed." The State requested an eight-year prison sentence followed by two years of probation. The trial judge rejected the statutory reasons argued for departure and stated, "The only thing I'm prepared to do—is I do believe that the facts of this case, in my opinion, don't warrant a sentence more than the statutory maximum, which is five years each." The judge recognized that statutory mitigators are nonexclusive and stated, "And in this case, I think the facts, which are clear from the record, and [Counsel] had recited the summary of them don't warrant an excess of five years, so -4- that will be a departure." The trial court imposed a concurrent five years in prison on counts one and two. When the prosecutor asked for clarification on the reason, the judge said, "Essentially, I'm saying this case isn't worth eight years." A trial court conducts a two-step process when it decides whether to impose a departure sentence. State v. Johnson, 288 So. 3d 765, 767 (Fla. 2d DCA 2020). "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)." State v. Chubbuck, 141 So. 3d 1163, 1168 (Fla. 2014) (quoting Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)). "The second step 'is a judgment call within the sound discretion of the [trial] court'—whether the trial court should depart." Johnson, 288 So. 3d at 767 (alteration in original) (quoting Banks, 732 So. 2d at 1068). The issue here surrounds step one—whether there was a valid legal ground for departure and adequate factual support. 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. Banks, 732 So. 2d at 1067 (footnotes omitted) (quoting § 921.001, Fla. Stat. (1995)). Section 921.0026(2) provides a nonexclusive list of mitigating factors that can justify a downward departure sentence. See § 921.0026(1); Chubbuck, 141 So. 3d at 1169; Johnson, 288 So. 3d at 768. The trial court may consider nonstatutory -5- mitigating factors only "when the reason for such departure is consistent with the legislative sentencing policy." Johnson, 288 So. 3d at 768. "A trial court may not ignore the criminal sentencing policy established by the legislature simply because that policy offends the trial court's sensibilities." State v. Bowman, 123 So. 3d 107, 110 (Fla. 1st DCA 2013) (quoting State v. Ayers, 901 So. 2d 942, 946 (Fla. 2d DCA 2005)). The reason that Carnes' lowest permissible sentence was 79.8 months, a sentence in excess of the statutory maximum, did not result from the facts of this case but from his prior record. His scoresheet added 50.4 points for his prior record, including convictions for robbery and escape. Without the prior record points, his lowest permissible sentence would have been forty-two months, less than the statutory maximum. The pertinent legislative policy under the CPC at play here is that "[t]he severity of the sentence increases with the length and nature of the offender's prior record." § 921.002(1)(d). When the CPC's lowest permissible sentence exceeds the statutory maximum for the offense, "the sentence required by the [CPC] must be imposed." § 921.0024(2). Therefore, the trial court's reliance on the facts of the current offenses is not consistent with the legislative sentencing policy that the severity of sentence increases for an offender with a long and serious prior record. Carnes appears to agree that the trial court's stated reason was insufficient because he argues the "tipsy coachman" doctrine. Under the tipsy coachman doctrine, an appellate court can "affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.' " Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644–45 (Fla. 1999)). -6- Carnes contends that this court should the affirm the downward departure based on the argument Counsel made at sentencing concerning the legislative history of the registration laws. Carnes asserts that the trial court's comment that the facts of the case did not fit the crime is consistent with the legislative history of the registration laws that Counsel had argued to the court. But the trial court, having heard that argument, did not choose to state it as a ground for departure. The court either determined that the reason was not a valid legal ground with adequate factual support or exercised its discretion to not rely on that reason. See Chubbuck, 141 So. 3d at 1168. Based on the argument made to the trial court, the record does not support the nonstatutory mitigator regarding legislative history as a valid legal ground for departure. Carnes contends that the legislative policy for the registration laws is to keep track of offenders to protect the public. But allowing the court to impose a downward departure when a sexual offender does not contact children and is easily located after failing to comply with the registration requirements would work to eviscerate the sentencing policy. The legislature has determined that Carnes' violations are third-degree felonies subject to a maximum of five years' imprisonment but that due to his significant criminal record, his sentence should exceed the statutory maximum. See § 921.0024(2); Ayers, 901 So. 2d at 945-46. Thus, a departure on this alternative basis is also inconsistent with the legislature's sentencing policy. Therefore, we reverse the downward departure sentences and remand for a de novo sentencing hearing. We note that "on remand for resentencing due to the substantive invalidity of a downward departure, the trial court is permitted to impose a -7- downward departure as long as the departure 'comports with the principles and criteria' of the CPC." Shine v. State, 273 So. 3d 935, 937 (Fla. 2019) (quoting Jackson v. State, 64 So. 3d 90, 93 (Fla. 2011)); see also State v. Hunt, 302 So. 3d 453, 457 (Fla. 2d DCA 2020) ("We reverse and remand to the trial court for the imposition of a legal sentence, which may include a new downward departure sentence as long as it is supported by a legally sufficient basis."). A resentencing will give the defense the opportunity to attempt to obtain evidence and seek mitigation based on the statutory mitigator of the need for specialized treatment for a mental disorder or other appropriate grounds as set out in section 921.0026(2). Therefore, this disposition renders Carnes' argument moot concerning ineffective assistance of counsel on the face of the record in failing to present evidence in support of that mitigating factor. In summary, we affirm Carnes' convictions and reverse his sentences for a de novo sentencing hearing. Affirmed in part, reversed in part, and remanded. LaROSE and SMITH, JJ., Concur. -8-