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 STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D19-4125 ) JEFFERY CLARENCE COSBY, ) ) Appellee. ) ) Opinion filed March 12, 2021. Appeal from the Circuit Court for Hillsborough County; Melissa M. Polo, Judge. Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellee. MORRIS, Judge. The State appeals the imposition of a downward departure sentence following Jeffery Clarence Cosby's plea and conviction for felony petit theft. Because the trial court failed to articulate its reasons for imposing the downward departure sentence either orally or in writing, and because the asserted grounds for departure were not supported by competent, substantial evidence, we must reverse and remand. We apply a mixed standard of review to a trial court's determination that there is a valid legal basis for a downward departure sentence and that there are adequate facts to support it; we will sustain that determination if the trial court applied the correct rule of law and competent, substantial evidence supports it. Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); State v. Diaz, 290 So. 3d 611, 613 (Fla. 2d DCA 2020). If a valid legal basis is found, the trial court must then determine whether it should depart, and that decision is reviewed for abuse of discretion. Banks, 732 So. 2d at 1067; Diaz, 290 So. 3d at 613. Trial courts are permitted to impose sentences below the statutory maximum if a defendant establishes a valid legal basis for departure. See § 921.0026(2), Fla. Stat. (2019).1 However, the reasons for the departure must be articulated either orally or in writing, and they must be supported by competent, substantial evidence. See § 921.002(1)(f) (explaining that a departure sentence must be articulated in writing by the trial court); State v. Carlson, 911 So. 2d 234, 236 (Fla. 2d DCA 2005) ("If the trial court fails to file written reasons, a downward departure sentence may nevertheless be affirmed if the trial court has made oral findings supporting the departure sentence on the record at the sentencing hearing." (first citing § 921.00265(2), Fla. Stat. (2003); then citing Pease v. State, 712 So. 2d 374 (Fla. 1997))); State v. Schultz, 238 So. 3d 288, 290 (Fla. 4th DCA 2018) (explaining that 1While section 921.0026(2) lists various reasons for departure, trial courts are not constrained to the listed reasons. -2- competent, substantial evidence must support a reason for a departure sentence). A departure sentence must also be consistent with legislative sentencing policies and not otherwise prohibited. See State v. Hodges, 151 So. 3d 531, 533-34 (Fla. 3d DCA 2014) ("While a trial court may depart for a reason other than those set forth in section 921.0026(2), it may do so only if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited." (first citing State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013); then citing State v. Knox, 990 So. 2d 665 (Fla. 5th DCA 2008); and then citing State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005))); State v. McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010) ("In evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy." (first citing State v. Geoghagan, 27 So. 3d 111, 115 (Fla. 1st DCA 2009); then citing Rafferty v. State, 799 So. 2d 243, 248 (Fla. 2d DCA 2001); and then citing State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998))). "In the absence of either written or oral findings, however, a downward departure sentence is improper." Carlson, 911 So. 2d at 236; cf. Schultz, 238 So. 3d at 290; State v. Murray, 161 So. 3d 1287, 1290 (Fla. 4th DCA 2015). Here, at sentencing, defense counsel asserted that a downward departure was warranted based on sentences received by other defendants charged with similar crimes and who had similar guidelines scores. Defense counsel also asserted that a downward departure sentence "was in line with the sentencing guidelines." The trial court never made any explicit oral finding that it was departing downward on those grounds. Instead, the State objected to the imposition of a downward departure -3- sentence and then informed the trial court that it was required to list a specific reason for the departure. The court questioned whether that meant something more specific than just citing to the statute, and the State insisted that a specific reason had to be provided, a point that defense counsel agreed with. However, the trial court concluded that because the scoresheet did not list the statute, all that was required was a notation to the statute it was relying on in departing downward. In accordance with the trial court's oral conclusion, the scoresheet contains a statutory notation to section 921.0026(2) with a box checked next to it. But no written reason was provided for the downward departure. Consequently, because the trial court failed to articulate either orally or in writing the specific reason for departing downward, the sentence must be reversed. Beyond the lack of a specific reason for departure, this case presents another problem: the downward departure was not supported by competent, substantial evidence. Because a court must consider whether nonstatutory mitigators are consistent with legislative polices, Hodges, 151 So. 3d at 533-34, we must first look to section 921.002 to determine whether the trial court could have imposed a downward departure based on the sentences imposed for defendants in other cases who faced similar charges and who scored similarly under the guidelines. Section 921.002(1)(b) provides that "[t]he primary purpose of sentencing is to punish the offender." The statute goes on to provide that the use of incarceration "is prioritized toward offenders convicted of serious offenses and certain offenders who have long prior records." § 921.002(1)(i). Here, it is not clear that the trial court considered Cosby's long criminal history before imposing the downward departure. Further, the trial court had no -4- knowledge of the particular facts of the cases involving other defendants who faced similar charges and who scored similarly under the guidelines. Thus, if the downward departure was imposed based on the sentences received by those defendants, it was done simply based on the nature of charges and similarities in guidelines scoring. But that necessarily implies that all similarly situated defendants are entitled to downward departure sentences without regard to the particular facts of their own cases and thus renders the guidelines recommended sentence moot. Essentially, it makes the downward departure the rule and not the exception for similarly situated defendants. We cannot agree that such a sentence is consistent with legislative policies. The closest recognized basis for a downward departure sentence is the reduction of a defendant's sentence so that it is comparable to that received by a codefendant. However, "each case must be decided entirely on its own facts and circumstances." Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987) (recognizing that a departure may be warranted in order to match the sentence of a codefendant but explaining that each case is governed by its own facts). Thus the trial court needed to consider Cosby's long criminal history before deciding whether a reduction of Cosby's sentence was warranted based on the sentences of similarly situated defendants. Furthermore, in cases involving a downward departure based on the sentence received by a codefendant, such a reduction is only proper where the codefendant "was at least, if not more, culpable than the defendant." State v. Diaz, 189 So. 3d 896, 899 (Fla. 3d DCA 2016). And that determination necessarily requires consideration of the facts and circumstances of both the case for which the sentence is being imposed as well as the case that is being used for comparison purposes. If a court must consider the facts and -5- circumstances of a codefendant's case, then logically it must consider the facts and circumstances of similarly situated defendants who are not codefendants but whose cases are being relied upon by a defendant as a basis for a downward departure. Because there is no indication in our record that the trial court had knowledge of the facts and circumstances surrounding the cases of the similarly situated defendants or that it considered Cosby's long criminal history, the imposition of a downward departure sentence based on the sentences received by similarly situated defendants is not supported by competent, substantial evidence.2 And to the extent that the downward departure was imposed based on the trial court's belief that the recommended guidelines sentence was not commensurate with the seriousness of the crime, Florida courts hold that that is not a valid reason to depart. See Williams v. State, 492 So. 2d 1308, 1309 (Fla. 1986); Scurry v. State, 489 So. 2d 25, 29 (Fla. 1986); State v. Whiteside, 56 So. 3d 799, 801 (Fla. 2d DCA 2011); State v. Lerman, 624 So. 2d 849, 849 (Fla. 2d DCA 1993). Instead, if the trial court believed that leniency was appropriate, its option was to have "the leniency . . . come from the exercise of the court's discretion to impose the minimum guidelines sentence." State v. Thompkins, 113 So. 3d 95, 100 (Fla. 5th DCA 2013). Finally, we note that defense counsel's other asserted basis for departure, that the requested sentence was "in line" with section 921.002, is not a valid basis for 2Given the shortcomings in the trial court's factual basis for the sentence it imposed, this court does not reach the issue of when, if ever, sentences received by similarly situated defendants other than codefendants can form a proper basis for downward departure. -6- departure. The scoresheet itself is a legislatively-created document that is "in line" with the guidelines and is meant to assist the trial court in determining a range of sentencing. Accordingly, because the asserted grounds for the imposition of a downward departure sentence were not supported by competent, substantial evidence, we reverse and remand for a de novo resentencing. See Diaz, 290 So. 3d at 614. We note that while Cosby's plea to the charges was labeled an open plea, it was entered only after the trial court stated it agreed to impose the requested downward departure sentence. Consequently, Cosby's plea was akin to a negotiated plea, and Cosby should be permitted to withdraw his plea based on our conclusion that the asserted grounds did not provide a valid basis to impose a downward departure sentence. Cf. State v. Brown, 545 So. 2d 446 (Fla. 3d DCA 1989) (reversing downward departure sentence and remanding for resentencing within the guidelines while allowing defendant opportunity to withdraw plea he negotiated with the trial court). Reversed and remanded. LaROSE and ATKINSON, JJ., Concur. -7-