DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
JOVAN ANDERSON,
Appellee.
No. 4D22-171
[December 14, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Andrew L. Siegel, Judge; L.T. Case No. 19-010252CF10A.
Ashley Moody, Attorney General, Tallahassee, and Pablo Tapia, Assistant
Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public
Defender, for appellee.
FORST, J.
The State appeals from Appellee Jovan Anderson’s downward departure
sentence, arguing the trial court erred in granting Appellee’s motion for
downward departure from the sentencing guidelines, because it failed to find
that Appellee committed the crimes in an unsophisticated manner, and no
competent substantial evidence was presented to support such a finding. The
State further argues the trial court’s finding that the offenses were an isolated
incident is not supported by substantial, competent evidence. We agree, and
thus reverse and remand for resentencing.
Background
The probable cause affidavit describes the underlying criminal incident as
follows. On August 19, 2019, Appellee was driving a vehicle that was under
surveillance and being followed by law enforcement to different locations
throughout Broward County. Appellee eventually stopped in the driveway of a
residence. A codefendant exited the passenger side of the vehicle while Appellee
“remained in the vehicle as the getaway driver.” The codefendant then went to
the rear of the residence and shattered the glass window of the master bedroom
with a tool he was carrying. After breaking into the residence, the codefendant
returned to the vehicle, got into the passenger side, and the vehicle drove away.
The law enforcement officers followed and stopped the vehicle about six miles
from the crime scene. The officers conducted a search and recovered $15,000
worth of jewelry that had been stolen from the residence. Appellee was
subsequently charged by information with burglary of an occupied dwelling
(Count 1) and grand theft (Count 2).
While awaiting prosecution on the instant 2019 Broward County charges,
Appellee was convicted in a Palm Beach County case of an earlier 2019 burglary
of an unoccupied dwelling and grand theft. Appellee was sentenced to two years
in prison for the Palm Beach County offenses. While serving his Palm Beach
County sentence, Appellee wrote a letter to the instant case’s trial court
requesting it to impose a sentence that would run concurrently with the Palm
Beach County sentence. Appellee expressed regret and remorse for how his
actions had affected the victims and his family members.
Subsequently, Appellee filed a motion for a downward departure on the basis
that “the offense[s] w[ere] committed in an unsophisticated manner and w[ere]
an isolated incident for which [Appellee] has shown remorse.” During the change
of plea and sentencing hearing, Appellee entered a plea of no contest and the
trial court adjudicated him guilty on both counts. Appellee’s counsel agreed that
the information and the probable cause affidavit would constitute the factual
basis for the crimes.
During the sentencing phase, the State objected to Appellee’s motion for a
downward departure. First, the State argued the offenses were planned and
deliberate, and therefore, were not unsophisticated, because Appellee had
worked with a codefendant, waited in the vehicle as the getaway driver, and
committed the offenses during the daytime when most people would be at work
or school. Additionally, the codefendant had utilized a tool to break into the
residence. Second, the State contended that Appellee’s criminal history—which
included convictions for (1) burglary of an occupied dwelling and possession of
burglary tools in 2011 in Broward County; (2) burglary of an occupied dwelling,
grand theft, and resisting without violence in 2012 in Broward County; and (3)
the aforementioned 2019 burglary of an unoccupied dwelling and grand theft in
Palm Beach County—demonstrated that the underlying offenses were not an
isolated incident.
The trial court granted Appellee’s downward departure motion over the State’s
objection, finding that Appellee had “met the three prongs that [he] submit[ted].
He’s remorsed, that it’s an isolated incident.” However, the trial court never
articulated a finding that Appellee had committed the offenses in an
unsophisticated manner.
The instant appeal followed.
2
Analysis
We apply a mixed standard of review when reviewing whether the trial court
erred in imposing a downward departure sentence:
First, the appellate court must determine whether the trial court
applied the correct rule of law, and whether competent, substantial
evidence supports the trial court’s reason for imposing a downward
departure sentence. State v. Subido,
925 So. 2d 1052, 1057 (Fla.
5th DCA 2006); State v. Mann,
866 So. 2d 179, 181 (Fla. 5th DCA
2004). In making this determination, the appellate court must
assess the evidence for sufficiency, not weight. Mann,
866 So. 2d at
181. Second, if the appellate court determines that the trial court’s
reason for departure was in accord with the law and supported by
competent, substantial evidence, it must then decide whether the
trial court was correct in determining that the downward departure
sentence was the best sentencing option for the defendant by
weighing the totality of the circumstances in the case. Subido,
925
So. 2d at 1057. The reviewing court should not disturb this
determination absent an abuse of discretion.
Id.
State v. Simmons,
80 So. 3d 1089, 1092 (Fla. 4th DCA 2012).
Pursuant to section 921.0026(1), Florida Statutes (2019), “[a] downward
departure from the lowest permissible sentence . . . is prohibited unless there
are circumstances or factors that reasonably justify the downward departure.”
Section 921.0026(2) provides a non-exhaustive list of mitigating circumstances
or factors that may be considered, one of which is when “[1] [t]he offense was
committed in an unsophisticated manner and [2] was an isolated incident [3] for
which the defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2019)
(emphasis added). To justify a departure on this ground, “all three elements
must be articulated by the trial judge and supported by the record.” State v.
Cooper,
889 So. 2d 119, 119 (Fla. 4th DCA 2004).
Here, the trial court found that Appellee had shown remorse. However, the
court failed to make a finding that the offenses were committed in an
unsophisticated manner. Moreover, no competent substantial evidence was
presented that would support such a finding. Nor did competent substantial
evidence exist to support the trial court’s finding that the offenses were an
isolated incident.
For the purposes of determining whether an offense was committed in an
unsophisticated manner, we have explained that unsophisticated is the opposite
of sophisticated, which in turn means “having acquired worldly knowledge or
refinement; lacking in natural simplicity or naivete.” Staffney v. State,
826 So.
3
2d 509, 512 (Fla. 4th DCA 2002) (quoting State v. Fleming,
751 So. 2d 620, 621
(Fla. 4th DCA 1999)). In other words, we have held that a crime is
unsophisticated when “the acts constituting the crime are ‘artless, simple, and
not refined.’” Romans v. State,
221 So. 3d 647, 651 (Fla. 4th DCA 2017) (quoting
State v. Walters,
12 So. 3d 298, 301 (Fla. 3d DCA 2009)).
In the instant case, the record shows that the offenses were not
unsophisticated, because Appellee took planned and deliberate action to commit
the crimes. Specifically, Appellee worked with a codefendant who possessed a
burglary tool and broke into the residence while Appellee waited in the vehicle
and acted as a getaway driver. See State v. Salgado,
948 So. 2d 12, 18 (Fla. 3d
DCA 2006) (“[T]he defendant and co-defendant took several distinctive and
deliberate steps in committing the burglary and thefts, which cannot be
characterized as being simple, artless, naïve, or unrefined. Rather, their actions
demonstrate that they knew what they were doing and were not unsophisticated
regarding the burglary and thefts.”). The fact that Appellee and the codefendant
unknowingly committed the crime in front of law enforcement does not render
the crime unsophisticated, but simply demonstrates that the crime was not
executed as planned.
With respect to determining whether an offense is an “isolated incident,” no
bright-line rule exists. However, in making this determination, courts have
taken into consideration “the time between offenses, the types of offenses, and
whether they suggest a pattern.” Wallace v. State,
197 So. 3d 1204, 1205 (Fla.
1st DCA 2016). Here, Appellee has a criminal record which shows that he had
been convicted of burglary on three separate occasions prior to the instant case.
Although two of these burglaries occurred in 2011 and 2012, the third burglary
occurred in 2019, which is the same year when the underlying burglary
occurred. Thus, the record demonstrates that the underlying offenses were not
an isolated incident, as there is a pattern of Appellee committing burglaries.
Conclusion
There are cases for which a downward departure sentence is appropriate.
This was not one of those cases. Because the trial court did not make findings,
supported by competent substantial evidence, that the offenses were committed
in an unsophisticated manner and were part of an isolated incident and,
moreover, because the record would not support such findings, we vacate the
downward departure sentence and reverse and remand for resentencing.
Reversed and remanded.
GROSS and MAY, JJ., concur.
* * *
4
Not final until disposition of timely filed motion for rehearing.
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