State v. Johnson ( 2016 )

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. 2D15-3043
)
DARIUS Q. JOHNSON, )
)
Appellee. )
________________________________ )
Opinion filed August 17, 2016.
Appeal from the Circuit Court for
Manatee County; Deno G. Economou,
Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General,
Tampa, for Appellant.
Howard L. Dimmig, II, Public Defender,
and Brooke Elvington, Assistant Public
Defender, Bartow, for Appellee.
KELLY, Judge.
The State appeals from the downward departure sentence imposed on
Darius Q. Johnson following his nolo contendere plea to uttering a counterfeit
instrument. We reverse because the trial court's reasons for departure from the
recommended guidelines sentence are not supported by competent, substantial
evidence.
Johnson's recommended guidelines sentence was 119 months in state
prison.1 The prosecutor requested that the court impose the guidelines sentence
because Johnson's prior record consisted of serious offenses, for which he served
twenty years, and the charged offense occurred only two years after his release from
prison. Defense counsel represented to the court that departure was warranted
because Johnson received no financial benefit from the offense and an uncharged
ringleader coordinated the offense in a larger criminal enterprise and provided Johnson
with the fraudulent check. Defense counsel also asked that Johnson receive a
sentence that would enable him to keep his job. The court, relying on defense counsel's
argument, offered Johnson two years of probation on the basis of section
921.0026(2)(b), Florida Statutes (2014), which states that "[t]he defendant was an
accomplice to the offense and was a relatively minor participant in the criminal conduct."
The State objected to the imposition of a nonstate prison sanction and requested a "full-
fledged" sentencing hearing because of the unsubstantiated statements by Johnson
and defense counsel. The court acknowledged the State's position, but continued with
the plea colloquy and the imposition of the departure sentence.
A trial court must impose a guidelines sentence unless the court finds that
competent, substantial evidence supports a valid reason for departure. State v.
Henderson, 766 So. 2d 389, 390 (Fla. 2d DCA 2000). It is the defendant's burden to
The Criminal Punishment Code scoresheet does not appear in the record.
1
However, the prosecutor recited its contents and defense counsel raised no objection.
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prove by a preponderance of the evidence that a valid reason to depart exists. State v.
Sawyer, 753 So. 2d 737, 738 (Fla. 2d DCA 2000).
No testimony or evidence was presented to support the assertion that
Johnson was a minor participant in the offense. As the State argues, defense counsel's
arguments are not evidence. See State v. Pinckney, 173 So. 3d 1139, 1140 (Fla. 2d
DCA 2015) (noting that the arguments of counsel are not evidence); State v. Bernard,
744 So. 2d 1134, 1135 (Fla. 2d DCA 1999) ("[R]epresentations of an attorney alone are
insufficient to form a valid basis for departure."); State v. Silver, 723 So. 2d 381, 382-83
(Fla. 4th DCA 1998) (holding that defense counsel's assertion without supporting
evidence was insufficient to establish that the defendant was a minor participant in the
offense). The undisputed facts before the court were that Johnson went to the bank
and attempted to cash a fraudulent check. He did not "receive a financial benefit" only
because the bank teller refused to cash the check. These facts, even if proven, do not
support the reasons for departure.
Therefore, we reverse Johnson's sentence and remand for a new hearing
where Johnson shall be permitted to withdraw his plea. See State v. Teal, 831 So. 2d
1254, 1256 (Fla. 2d DCA 2002) (holding that the defendant should be given the
opportunity to withdraw his plea because the sentence was the result of an agreement
induced by the trial court). If Johnson declines the opportunity to withdraw his plea, the
sentencing court must impose a guidelines sentence. See State v. Licea, 707 So. 2d
1155, 1157 (Fla. 2d DCA 1998).
Reversed and remanded for further proceedings.
NORTHCUTT and KHOUZAM, JJ., Concur.
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