Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Appellant, v. DWIGHT DAVID SAUNDERS, Appellee. Nos. 2D20-1532, 2D20-1555 CONSOLIDATED July 7, 2021 Appeals from the Circuit Court for Pinellas County; Chris Helinger, Judge. Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee. BLACK, Judge. In these consolidated appeals, the State challenges Dwight Saunders' sentences of time served for two felony petit theft convictions. The State argues that Saunders' sentences must be reversed because the State did not agree to time-served sentences in exchange for Saunders' pleas and the sentences are downward departures imposed without a valid basis. We agree. In April 2020, Saunders was charged in two separate cases with felony petit theft. Saunders was released on his own recognizance (ROR) on the first charge and immediately committed the second petit theft. At a hearing held on May 4, 2020, Saunders, who was seventy years old, asked for time served in each case. The State noted that according to his criminal punishment code scoresheet Saunders' lowest permissible sentence was 22.2 months in prison. The State also noted that Saunders' prior record included sexual offenses for which he had been designated a sexual predator. Before conducting the plea colloquy, the court indicated that it would sentence Saunders to the requested time-served over the State's objection. The court also inquired as to whether Saunders had been released during the pendency of the cases due to the 2 Covid-19 pandemic; there is no clear answer to that question in the record. However, the State responded to the court's declared intent to sentence Saunders to time-served: "I would object to a departure; I don't think there's a lawful basis. And even under the exigencies of the current pandemic situation, I don't think it would be a justified departure given that he was released ROR and he picked up a new charge." The court responded: I don't care if it's 10 [petit thefts]. I would care if it was something violent. I understand he has a dicey background. I still think that we have to make every possible attempt to get people out of the system, and my understanding is the jail is now facing another overcrowding problem. The court then conducted the plea colloquy, during which the State again objected to the imposition of time-served sentences. Upon rendition of the sentences, the State filed its notices of appeal. The trial court may not impose a sentence below the lowest permissible sentence on a defendant's scoresheet unless there is a valid mitigating circumstance to justify the downward departure. § 921.0026(1), Fla. Stat. (2020). 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 3 determination if the trial court applied the correct rule of law and competent, substantial evidence supports it. State v. Cosby, 313 So. 3d 903, 905 (Fla. 2d DCA 2021) (first citing Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999); and then citing State v. Diaz, 290 So. 3d 611, 613 (Fla. 2d DCA 2020)). If the trial court imposes a departure sentence, "the reasons for the departure must be articulated either orally or in writing, and they must be supported." Cosby, 313 So. 3d at 905; see § 921.002(1)(f) (explaining that a departure sentence must be articulated in writing by the trial court); see also 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); and then citing Pease v. State, 712 So. 2d 374, 374 (Fla. 1997))). The defendant bears the burden of establishing by "a preponderance of the evidence" that a legal ground for the departure exists and that facts supporting the legal ground have been established. Carnes v. State, 46 Fla. L. Weekly D995, D996 (Fla. 2d DCA Apr. 30, 2021) 4 ("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.' " (quoting Banks, 732 So. 2d at 1067)); accord State v. Browne, 187 So. 3d 377, 378 (Fla. 5th DCA 2016) ("The defendant bears the burden of proving a departure factor by the preponderance of the evidence."). In this case, the State contends that there was no valid legal basis for the departure sentences. See Carnes, 46 Fla. L. Weekly at D995b ("The issue here surrounds . . . whether there was a valid legal ground for departure and adequate factual support."). The State correctly argues that the only statutory legal basis cited in the record is the notation on Saunders' scoresheets that his sentences were the result of a plea agreement. See § 921.0026(2)(a). Although Saunders entered a guilty plea in each case, there was no plea agreement, as evidenced by the State's objection to the sentences. The record clearly reflects that the State did not agree to sentences of time-served; therefore, there was no plea agreement upon which to base the departure sentences. See State v. Daniels, 149 So. 3d 1175, 1176 (Fla. 2d DCA 2014). 5 The State also correctly points out that Saunders presented no evidence in support of departure sentences. The extent of Saunders' argument was "we're asking for time served today." "Where a defendant presents no evidence, he fails to meet the burden of proving a departure factor by a preponderance of the evidence." State v. Williams, 963 So. 2d 281, 282 (Fla. 4th DCA 2007) (citing State v. Silver, 723 So. 2d 381, 383 (Fla. 4th DCA 1998)). And where the defendant fails to meet the burden, the trial court errs in imposing a downward departure sentence. See id. Finally, we note that "[w]hile a trial court may depart for a reason other than those set forth in section 921.0026(2), it may only do so if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited." State v. Hodges, 151 So. 3d 531, 534 (Fla. 3d DCA 2014) (first citing State v. Bowman, 123 So. 3d 107, 109 (Fla. 1st DCA 2013); then citing State v. Knox, 990 So. 2d 665, 669 (Fla. 5th DCA 2008); and then citing State v. Ayers, 901 So. 2d 942, 946 (Fla. 2d DCA 2005)); accord Cosby, 313 So. 3d at 905 ("A departure sentence must also be consistent with legislative sentencing policies and not otherwise prohibited."). The only remaining possible bases in the record stem 6 from statements by the court that "we have to make every possible attempt to get people out of the system" and "the jail is now facing another overcrowding problem." To the extent that the court's stated bases for departure must come from either statute or case law, see, e.g., Banks, 732 So. 2d at 1067 ("Legal grounds are set forth in case law and statute . . . ."), no case law supports the court's findings. To the extent that departure sentences may be based upon legally valid reasons outside of statute and case law, see § 921.0026(1) (stating that a downward departure is permissible when there are "circumstances or factors that reasonably justify the downward departure"), they must be consistent with legislative sentencing policies. Here, although the court inquired about whether Saunders had previously been released due to the pandemic, it is not clear whether the court based its decision to impose downward departure sentences on the pandemic or the more general reasons articulated. Regardless, and to the extent that the court's statements are sufficient to constitute oral findings for departure, there was no evidence supporting the findings and they are otherwise contrary to stated legislative purposes. "The primary purpose of sentencing is to punish the offender," and 7 although "[t]he penalty imposed [should be] commensurate with the severity of the primary offense," "[t]he severity of the sentence increases with the length and nature of the offender's prior record." § 921.002(1)(b), (c), (d). The trial court focused on the current crimes being nonviolent; it failed to consider the stated purpose of the criminal punishment code and the legislature's decision to give great consideration to a defendant's prior record. And, as noted above, there was no evidence—much less competent substantial evidence sufficient to establish a preponderance—supporting the court's statements. There was no evidence of jail overcrowding. See State v. Holsey, 908 So. 2d 1159, 1161 (Fla. 1st DCA 2005) (concluding that the court's departure "based on prison overcrowding and strained [Department of Corrections] budget" was unsupported by evidence). While we applaud the trial court's appreciation for the seriousness of the pandemic, there was no evidence regarding the pandemic, the courts' response to the pandemic, or Saunders' health or vulnerability in relation to Covid- 19. In the absence of evidence supporting a valid legal basis for departure, we must reverse Saunders' sentences. See State v. 8 Bellamy, 269 So. 3d 674, 676 (Fla. 2d DCA 2019); accord Williams, 963 So. 2d at 282 ("The court erred in granting a downward departure, because no evidence was presented to support a departure."). On remand, Saunders may move to withdraw his plea; the trial court must otherwise conduct a de novo resentencing. See Cosby, 313 So. 3d at 907-08. Reversed and remanded. VILLANTI and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication. 9