Soto v. State

377 So.3d 1232

Eliseo SOTO, Appellant,

v.STATE of Florida, Appellee.

No. 2D22-1764

District Court of Appeal of Florida, Second District.

January 19, 2024

Appeal from the Circuit Court for Hillsborough County; Robin F. Fuson, Judge.

Wade M. Whidden of Whidden Johnson, P.L., Tampa, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Natalia Reyna-Pimiento, Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Eliseo Soto appeals from his judgment and sentence for sexual battery. On the issues preserved and raised by Soto, we affirm his conviction but reverse his sentence.

Soto raises two sentence-related, issues, one of which requires reversal. The supreme court has stated that "consideration … of the defendant’s failure to accept responsibility" is not foreclosed by the statutory sentencing scheme. Davis v. State, 332 So. 3d. 970, 975 (Fla. 2021). Thus we cannot conclude, as Soto urges, that fundamental error occurred where the trial court considered and commented upon Soto’s failure to accept responsibility for the crime. However, we agree with Soto that reversal of his sentence is required where the trial court failed to apply the correct framework in considering Soto’s request for a downward departure sentence.

Although none of the statutory mitigating factors applied to Soto, he asked that the court consider nonstatutory mitigators and downward depart from 94.5 months in prison, the lowest permissible sentence indicated on his scoresheet. Soto submitted evidence in support of his request. In imposing sentence, the court stated:

So, my hands are pretty much tied by the fact that he was found guilty, and his score sheet, his criminal punishment score sheet, does not offer me an opportunity to go below guidelines if I wanted. And there [has] been certainly nothing really brought forward today that would be a legal justification to go below guidelines. So, having said that, I’m going to adjudicate him guilty and sentence him to 94.5 months in the Florida State Prison, followed by eight years of sex offender probation.¹

[1–4] "Generally, we review an order on a motion for downward departure for an abuse of discretion. ‘But because the issue here revolves around the trial court’s applying an incorrect standard in determining whether to exercise its discretion, we apply a de novo standard of review.’ " White v. State, 350 So. 3d 401, 403 (Fla. 2d DCA 2022) (first citing Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999); and then quoting Barnhill v. State, 140 So. 3d 1055, 1060-61 (Fla. 2d DCA 2014)). As this court has recognized, "[t]he analytical framework a trial court must follow in considering a request for a downward departure from the sentencing guidelines is well established." Kezal v. State, 42 So. 3d 252, 254 (Fla. 2d DCA 2010).

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)….

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.

White, 350 So. 3d at 403 (quoting Banks, 732 So. 2d at 1067-68). Where the trial court erroneously believes that it legally does not have the discretion to depart, the reviewing court must reverse the sentence. Kezal, 42 So. 3d at 254.

[5] The court’s statements that its hands were tied and that Soto’s scoresheet prevented the court from departing establish that the court mistakenly believed it could not depart. The court’s next statement, that there was "nothing really brought forward … that would be a legal justification" to depart, is unclear and does not cure the misconception evinced by the first statements. See Williams v. State, 286 So. 3d 892, 898 (Fla. 2d DCA 2019) (reversing a sentence based on the uncertainty as how the trial court reached its conclusion where it was, "possible that the trial court, instead of determining that it...