STATE OF FLORIDA v. BARRY MICHAEL SCHULTZ

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
BARRY MICHAEL SCHULTZ,
Appellee.
No. 4D16-227
[February 14, 2018]
Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Jack S. Cox, Judge; L.T. Case No.
2011CF002959AXX.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellee.
BELANGER, ROBERT E., Associate Judge.
Appellant, the State of Florida, appeals the downward departure
sentence imposed by the trial court below. Appellee, Barry Michael
Schultz, cross appeals his convictions for trafficking in oxycodone. This
Court has jurisdiction under Florida Rules of Appellate Procedure
9.140(b)(1)(A) and (c)(1)(N). For the reasons discussed, we affirm the
conviction, but we reverse the departure sentence and remand for
resentencing.
A jury found Schultz guilty of 55 counts of drug trafficking. Given the
number of charges, the defendant scored 2549 sentencing points. The
lowest permissible sentence under the criminal punishment code was
1890.75 months in prison, approximately 157.5 years. At sentencing, the
State requested concurrent life sentences on each count, with concurrent
25 year mandatory minimum sentences. In contrast, the defense
requested that Schultz be concurrently sentenced to the bottom of the
guidelines as opposed to the life sentence sought by the State. The
defense had no objection to the scoresheet and requested that his
mandatory minimums run concurrently. The trial court then sentenced
Schultz to the 25 year minimum mandatory sentence on each count to run
concurrently. The State objected to the sentences arguing that there was
no basis for a departure from the bottom of the guidelines. Nevertheless,
the trial court proceeded with the sentence as imposed. Thereafter, the
State gave notice of appeal.
On appeal, the State argues that, under State v. Murray, 161 So. 3d
1287 (Fla. 4th DCA 2015), the trial court erred in sua sponte entering a
downward departure sentence on Schultz’s convictions. It argues that the
trial court failed to articulate any basis for the departures and that no
evidence was presented at the sentencing hearing to support a departure.
The State further argues that the trial court failed to articulate in writing
the basis for the downward departures pursuant to section 921.002(3),
Florida Statutes (“Any sentence imposed below the lowest permissible
sentence must be explained in writing by the trial court judge.”).
“Whether there is a valid legal ground for a downward departure is a
question of law, to be reviewed de novo.” Wynkoop v. State, 14 So. 3d
1166, 1171 (Fla. 4th DCA 2009) (citing State v. Walker, 923 So. 2d 1262,
1264 (Fla. 1st DCA 2006)). “A trial court’s legal ground for a departure
must be valid and supported by competent substantial evidence.” Id. at
1171-72 (citing State v. Schillaci, 767 So. 2d 598, 600 (Fla. 4th DCA 2000)).
Murray is exactly on point. Murray held that “[d]epartures below the
lowest permissible sentence established by the code must be articulated
in writing by the trial court judge and made only when circumstances or
factors reasonably justify the mitigation of the sentence.” Id. at 1289-90
(citing § 921.002(1)(f), Fla. Stat. (2013); § 921.002(3), Fla. Stat. (2013)
(“Any sentence imposed below the lowest permissible sentence must be
explained in writing by the trial court judge.”)). In Murray, this Court
concluded that, in the absence of written or oral findings, a downward
departure sentence was improper and remanded for resentencing within
the guidelines. Id. at 1290. Based upon the holding in Murray, we
determine that the trial court here erred in sua sponte entering a
downward departure sentence on Schultz’s convictions without
articulating any basis for the departures. Notably, as in Murray, Schultz
did not file a motion for downward departure, but merely requested a
sentence at the bottom of the guidelines. Thus, no evidence was presented
at the sentencing hearing to support a departure. Further, the trial court
failed to articulate in writing the basis for the downward departures
pursuant to section 921.002(3), Florida Statutes (2016) (“Any sentence
imposed below the lowest permissible sentence must be explained in
writing by the trial court judge.”). Therefore, the trial court erred by not
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stating it was departing, not orally articulating reasons for doing so, and
failing to enter a written order memorializing the reasons for departure.
See Murray, 161 So. 3d at 1290. As such, we reverse and remand the
departure sentence for resentencing within the guidelines.
Schultz’s arguments on cross appeal are without merit and require no
further discussion.
Accordingly, we affirm Schultz’s conviction, but we reverse the
departure sentence and remand for resentencing within the guidelines.
Affirmed in part, reversed in part and remanded with instructions.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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