State v. Kelleher , 2014 Fla. App. LEXIS 11032 ( 2014 )


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  •        IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
    July 18, 2014
    STATE OF FLORIDA,                           )
    )
    Appellant,                    )
    )
    v.                                          )         Case No. 2D13-3819
    )
    TIMOTHY KELLEHER,                           )
    )
    Appellee.                     )
    )
    BY ORDER OF THE COURT:
    Appellant's motion for rehearing is granted. The prior opinion dated May 28,
    2014, is withdrawn, and the attached opinion is issued in its place. No further motions
    for rehearing will be entertained.
    I HEREBY CERTIFY THE FOREGOING IS A
    TRUE COPY OF THE ORIGINAL COURT ORDER.
    JAMES BIRKHOLD, CLERK
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    STATE OF FLORIDA,                             )
    )
    Appellant,                      )
    )
    v.                                            )         Case No. 2D13-3819
    )
    TIMOTHY KELLEHER,                             )
    )
    Appellee.                       )
    )
    Opinion filed July 18, 2014.
    Appeal from the Circuit Court for Manatee
    County; John F. Lakin, Judge.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Elba Caridad Martin-
    Schomaker, Assistant Attorney General,
    Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender,
    and Cynthia J. Dodge, Assistant Public
    Defender, Bartow, for Appellee.
    CRENSHAW, Judge.
    The State of Florida appeals the downward departure sentence imposed
    for Timothy Kelleher's convictions of four counts of sale of illegal drugs, three of which
    were third-degree felonies and one of which was a second-degree felony. Pursuant to
    section 921.0026(2)(j), Florida Statutes (2011), a court can impose a sentence below
    the Criminal Punishment Code guidelines if "[t]he offense was committed in an
    unsophisticated manner and was an isolated incident for which the defendant has
    shown remorse." Id. Because the court erred in concluding the offense was committed
    in an unsophisticated manner and was an isolated incident, we reverse the downward
    departure sentence and remand for resentencing.
    Facts
    An undercover officer bought drugs from Kelleher in three transactions
    over the course of one week; Kelleher approached the officer at the third buy. Although
    Kelleher has had no felonies on his record for over ten years, he had a lengthy prior
    record including over twenty misdemeanors and over ten felonies some of which were
    violent felonies. The older felonies were scored because some of his misdemeanors
    occurred since his last felony. Thus, his scoresheet reflects a score of 84.6 points for
    which the lowest unmitigated sentence would be 42.45 months' prison. At sentencing,
    Kelleher requested a downward departure sentence for an unsophisticated, isolated
    offense for which the defendant has shown remorse under section 921.0026(2)(j); the
    State requested a bottom-of-the-guidelines sentence. The court imposed a downward
    departure sentence of three months' jail with eight months' jail suspended and a
    probationary period of twelve months thereafter to run concurrently on each count; the
    State appealed.
    Discussion
    "In order to support the trial court's reasoning for the downward departure,
    it was necessary for there to have been competent, substantial evidence that (1) the
    offense was committed in an unsophisticated manner, (2) it was an isolated incident,
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    and (3) the defendant had shown remorse." State v. Butler, 
    787 So. 2d 47
    , 48 (Fla. 2d
    DCA 2001) (citing § 921.0026(2)(j), Fla. Stat. (2000); State v. Santomaso, 
    764 So. 2d 735
    , 737 (Fla. 2d DCA 2000)). " 'The trial court must first determine whether it can
    depart—whether the defendant has met the burden of establishing sufficient factual
    support for a valid legal ground.' " Kezal v. State, 
    42 So. 3d 252
    , 254 (Fla. 2d DCA
    2010) (quoting State v. Green, 
    890 So. 2d 1283
    , 1286 (Fla. 2d DCA 2005)). In this
    case, Kelleher failed to establish that the manner of his offense was unsophisticated
    and the incident isolated.
    Turning first to whether the manner was unsophisticated, in at least one
    instance it was Kelleher who approached the detective to sell drugs. Although Kelleher
    did not use any mechanism or calculus to determine to whom he should sell drugs, and
    usually was approached by detectives, that conduct was not consistent. Rather, after
    establishing a relationship with the detective, Kelleher sought him out upon spotting him
    nearby. At first glance this case is similar to State v. Fleming, 
    751 So. 2d 620
     (Fla. 4th
    DCA 1999), which concluded that the simple purchase of cannabis from a police officer
    who was currently executing a search warrant was unsophisticated. However, this case
    is distinguishable from Fleming because Kelleher approached the detective at least
    once. Further, this is a case of sale to a police officer, which is more involved—Kelleher
    had to obtain a supply in order to sell the drugs—than is purchase, as in Fleming.
    Because Kelleher failed to establish that the manner of his offense was unsophisticated,
    we must reverse on this ground.
    We are also compelled to reverse because Kelleher failed to establish that
    his offense was an isolated incident. "[T]he issue for this [c]ourt is whether [Kelleher's]
    -3-
    criminal history is so extensive that it precludes a downward departure sentence under
    section 921.0026(2)(j) . . . ." State v. Waterman, 
    12 So. 3d 1265
    , 1268 (Fla. 4th DCA
    2009). As in Waterman, Kelleher's prior history falls somewhere "in the middle of the
    spectrum of criminal records, where on one end lies the defendant with a clearly
    excessive record, and on the other end lies a defendant with no prior criminal record."
    
    Id.
     Though Kelleher is correct that his prior history would not have been scored at all
    but for some misdemeanors because of the lapse between his prior offenses and the
    charged offense, that does not change that he has a lengthy history. His history is
    aggravated by the fact that this case itself consists of several occurrences over the
    course of a week. See 
    id.
     Compare State v. Fontaine, 
    955 So. 2d 1248
    , 1251 (Fla. 4th
    DCA 2007) (Warner, J., concurring specially) ("Having only two misdemeanor
    convictions ten years [prior] does not prevent a finding that this offense is an isolated
    incident."), and State v. Randall, 
    746 So. 2d 550
    , 552 (Fla. 5th DCA 1999) (holding an
    incident was isolated where there was only one prior conviction), with State v. Gaines,
    
    971 So. 2d 219
    , 220-21 (Fla. 4th DCA 2008) (holding that where defendant had
    eighteen prior convictions including several forcible felonies, a downward departure
    under section 921.0026(2)(j) cannot be sustained), and State v. Stephenson, 
    973 So. 2d 1259
    , 1263-64 (Fla. 5th DCA 2008) (same for seventeen prior convictions). In those
    cases on the higher end of the spectrum, defendants have been held not to have
    committed offenses that are isolated incidents. Kelleher's criminal history is so
    extensive that it precludes a downward departure sentence under section
    921.0026(2)(j).
    -4-
    Because the circuit court erred in imposing a downward departure
    sentence, we reverse the sentence and remand for resentencing.
    Sentence reversed.
    MORRIS and SLEET, JJ., Concur.
    -5-
    

Document Info

Docket Number: 2D13-3819

Citation Numbers: 142 So. 3d 958, 2014 Fla. App. LEXIS 11032, 2014 WL 3558537

Judges: Crenshaw, Morris, Sleet

Filed Date: 7/18/2014

Precedential Status: Precedential

Modified Date: 10/19/2024