State v. Kelleher

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2014, is withdrawn, and the attached opinion is issued in its place.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,
-2-
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-