Rodriguez v. State

299 So.3d 555

Billy Pabon RODRIGUEZ, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D19-2860

District Court of Appeal of Florida, Fifth District.

Opinion filed June 12, 2020

Rehearing Denied July 29, 2020

James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

Billy Pabon Rodriguez was convicted after trial of manslaughter, with the jury making special findings that he possessed and discharged a firearm during the commission of this offense that caused the death of the victim. Rodriguez challenges his twenty-five-year prison sentence, arguing that the trial court erred in denying his request for a downward departure sentence.¹ For the following reasons, we affirm.

At his sentencing hearing, Rodriguez sought a sentence below the lowest permissible prison sentence of 124.5 months shown on his Criminal Punishment Code Scoresheet. Section 921.0026(1), Florida Statutes (2017), prohibits a trial court from imposing a sentence below the lowest permissible sentence on the scoresheet "unless there are circumstances or factors that reasonably justify the downward departure." "A defendant seeking a downward departure has the burden of presenting competent substantial evidence at the sentencing hearing of at least one of the non-exclusive mitigating factors under section 921.0026(2), Florida Statutes ...." State v. Schuler , 268 So. 3d 242, 243–44 (Fla. 5th DCA 2019) (citing State v. Lackey , 248 So. 3d 1222, 1224 (Fla. 2d DCA 2018) ). Rodriguez argues that under section 921.0026(2)(j), he presented competent substantial evidence at sentencing that his offense was an isolated incident that was committed in an unsophisticated manner and for which he had shown remorse.

In Banks v. State , 732 So. 2d 1065 (Fla. 1999), the Florida Supreme Court explained that a trial court's decision on whether to impose a departure sentence 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. ...

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.

Id. at 1067–68 (footnotes omitted).

Rodriguez argues here that the trial court erred in step 1 of its analysis when, after finding that Rodriguez had shown remorse for the offense, it ruled that there was no "legal basis" to find that the offense was an isolated incident and that it was committed in an unsophisticated manner. See State v. Falocco , 730 So. 2d 765, 765 (Fla. 5th DCA 1999) (holding that a downward departure sentence is permissible under section 921.0026(2)(j) if the offense was committed in an unsophisticated manner, it was an isolated incident, and the defendant has shown remorse, but only if all three elements are shown (citing State v. Spioch , 706 So. 2d 32, 36 (Fla. 5th DCA 1998) )).

Rodriguez first asserts that there clearly was an evidentiary or "legal" basis to find that the offense was an isolated incident because he had no prior criminal history and the offense did not involve multiple incidents, as buttressed by the fact that no other criminal charges were filed against him. Rodriguez next argues that the trial evidence showed that the shooting was done in an unsophisticated manner because it was "artless, simple and not refined." See State v. Hollinger , ...