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. 2D18-4436 ) CLAUDELL JOHNSON, ) ) Appellee. ) ) Opinion filed January 10, 2020. Appeal from the Circuit Court for Hillsborough County; Barbara Twine Thomas, Judge. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims- Bohnenstiehl, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Carly J. Robbins-Gilbert, Assistant Public Defender, Bartow, for Appellee. SMITH, Judge. The State of Florida appeals the downward departure prison sentence imposed on Claudell Johnson arising from his convictions of grand theft of a motor vehicle and dealing in stolen property. The State argues the trial court's mitigating reasoning is not supported by competent, substantial evidence, and we agree. Accordingly, we reverse Mr. Johnson's sentence and remand to the trial court so that he may be properly sentenced in accordance with his Criminal Punishment Code (Code) scoresheet and chapter 921, Florida Statutes (2018). Background After a jury found Mr. Johnson guilty of grand theft of a motor vehicle and dealing in stolen property, the trial court proceeded to sentencing for those charges, as well as the violations of probation in his six other felony cases. Pursuant to Mr. Johnson's scoresheet, the lowest permissible prison sentence was 85.95 months (approximately seven years and two months). The defense stipulated to the accuracy of the scoresheet, but argued that Mr. Johnson's prior offenses, which were more than ten years old, would not be calculated into his scoresheet but for his 2013 misdemeanor conviction for driving with a suspended license. The defense acknowledged this was not a mitigating factor contemplated in the applicable sentencing statute. Without factoring in the prior offenses, the lowest permissible sentence Mr. Johnson could receive significantly dropped from 85.95 to 20.85 months (one year and seven months). Defense counsel acknowledged there was no legal authority allowing trial court to disregard Mr. Johnson's 2013 offense and the trial court recognized its limited discretion and frustration with the guidelines: This is a classic challenge that I have and I want you to hear me out if for no other reason than it allows me to ventilate. We constantly have these very hard choices where I have no latitude, where I have no discretion sometimes where the plea offer is far more generous. .... -2- So these 85 months [referring to Mr. Johnson's scoresheet] would be seven years in prison for a hundred dollar transaction. .... [B]ut that is the assertion we're confronted with here today all for a hundred dollars. At best, bone-headed, very unfortunate. And the court always is here trying to reconcile these extremes. . . . Notwithstanding, the trial court, relying upon the mitigating factor in section 921.0026(2)(c), which was not argued by the defense, departed from the lowest permissible sentence stating: His 2013 traffic matter is what allows his priors before 2006 to be scored and the court is persuaded that he did not have the benefit of an understanding that that would have the impact that it has, and it was a traffic violation. So the court uses that as ground for mitigation downward to not give him the full benefit of seven plus years Florida State Prison and instead gives him the 40 months. The State objected at the sentencing hearing to the trial court's downward departure. Analysis A trial court's decision to impose a downward departure sentence is subject to a two-part review involving mixed questions of law and fact. Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); see also State v. Imber, 223 So. 3d 1070, 1071-72 (Fla. 2d DCA 2017); State v. Torres, 60 So. 3d 560, 561-62 (Fla. 2d DCA 2011). First, the trial court must decide whether valid legal grounds for departure exist and whether there is adequate factual support for those legal grounds. Banks, 732 So. 2d at 1067. This part of the decision to depart will be sustained on appeal if the correct rule of law is applied and the decision is supported by competent, substantial evidence. Id. The -3- second step "is a judgment call within the sound discretion of the [trial] court"—whether the trial court should depart. Id. at 1068. This second step involves evaluating whether the trial court abused its discretion in weighing the totality of circumstances to determine whether departure is the "best option" for the defendant. Imber, 223 So. 3d at 1072. In this case we need not go any further than step one. We begin with section 921.0026(2), which contains a nonexclusive list of mitigating factors for a trial court's consideration in deciding whether to grant a defendant a downward departure from the statutory minimum sentence. While a trial court is not confined by the mitigating factors of section 921.0026(2), it may only consider others when the reason for such departure is consistent with the legislative sentencing policy. See State v. Ayers, 901 So. 2d 942, 946 (Fla. 2d DCA 2005) (citing Hall v. State, 823 So. 2d 757, 763 (Fla. 2002) ("Criminal sentencing policy is a matter of substantive law that is within the province of the legislature.")). It follows that "a trial court's opinions that the lowest permissible sentence is too harsh, or that the severity of the sentence is not commensurate with the seriousness of the crime, are prohibited grounds upon which to depart." State v. Bowman, 123 So. 3d 107, 109 (Fla. 1st DCA 2013); see also State v. Lerman, 624 So. 2d 849 (Fla. 2d DCA 1993) (concluding that trial court's disagreement with the guidelines is invalid reason supporting downward departure). In this case the trial court relied upon section 921.0026(2)(c), which allows for departure if: The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired. -4- Section 921.0026(2)(c), however, requires more than just a mere lack of understanding or appreciation of the impact of a particular crime. Otherwise, there would be no reason for the Code because most defendants, if not all, would be able to meet such an arbitrarily low bar. Under the first step of the Banks analysis, a defendant is required to prove a legal basis to depart by a preponderance of the evidence. See e.g. Camacho v. State, 164 So. 3d 45, 46-47 (Fla. 2d DCA 2015) (discussing defendant's theory of impaired capacity where defendant had been a professional boxer and sustained repeated blows to the head which caused neurocognitive deficit); Hiraldo v. State, 268 So. 3d 955, 956 (Fla. 2d DCA 2019) (finding that defendant's theory of impaired capacity due to her bipolar disorder was a valid legal basis for downward departure). Conversely, here, the defense requested a departure based upon non-statutory grounds and presented no evidence that Mr. Johnson was impaired or lacked the capacity to appreciate the criminal nature of his conduct at the time of the 2013 traffic violation. Instead, as evidenced by the trial court's comments, the trial court was more focused on the perceived harshness of the lowest permissible sentence on Mr. Johnson's scoresheet, due to the misdemeanor traffic violation in 2013. Conclusion Because the trial court's reliance on section 921.0026(2)(c) as the legal basis for the downward departure is not supported by competent, substantial evidence, and because the trial court's basis for the downward departure is not consistent with legislative policy, we reverse and remand for resentencing in accordance with Mr. Johnson's scoresheet and chapter 921. Reversed and remanded. -5- KHOUZAM, C.J., and ROTHSTEIN-YOUAKIM, J., Concur. -6-