STATE OF FLORIDA v. ALEX ANTHONY GUERRA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
ALEX ANTHONY GUERRA,
Appellee.
No. 4D20-1932
[October 27, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mariya Weekes, Judge; L.T. Case No. 19-10389CF10A.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellee.
LEVINE, J.
The defendant pled nolo contendere to two counts of aggravated assault
with a deadly weapon and one count of battery. The trial court granted
defendant’s motion for downward departure based on section
921.0026(2)(j), Florida Statutes (2019), over the state’s objection. The
state appeals, claiming there was not competent substantial evidence to
establish the elements required to justify a downward departure. We
agree. As a result, we reverse and remand for resentencing.
The defendant was arrested due to two incidents involving the victim
who was his girlfriend at the time. The girlfriend told the police that in
mid-July 2019, while the defendant and the victim were driving, the
defendant pulled out a semi-automatic firearm and placed it to the victim’s
head. The defendant told the victim that he “should get rid of the problem”
and told the victim that he should just kill her.
The second incident, according to the victim, took place on July 31,
2019. The defendant pulled the same firearm at the victim and told her
not to move. The defendant said that he would “take her to a bridge and
dump her body and nobody would know . . . .” The victim also told the
police of two other incidents where the defendant hit the victim in the face.
In mid-August 2019, the defendant “backhanded” the victim to her nose
and eye.
The defendant filed a motion for downward departure pursuant to
section 921.0026(2) arguing two grounds: (1) the victim was the initiator,
willing participant, aggressor, or provoker of the incident pursuant to
section 921.0026(2)(f), and (2) the defendant’s conduct was an isolated
incident, it was committed in an unsophisticated manner, and the
defendant had shown remorse pursuant to section 921.0026(2)(j). The
trial court ultimately granted downward departure based only on section
921.0026(2)(j).
During the sentencing hearing, two witnesses were called to testify as
to the defendant’s character, aspirations, and accomplishments, but
neither could testify as to the charged incidents. The victim, however,
testified that the defendant was both verbally and physically abusive, as
well as controlling over her, during their short-lived relationship.
The defendant testified on his own behalf as to his good character. The
defendant denied the victim’s version of events, stating that the case was
“based on hearsay, she say (sic). I’m not willing to sacrifice my freedom of
a great mind that will never get put to use. It’s hard for me that I suffered
in jail for nine months.” He also stated, “For someone just to say and run
to the police station and say that I hit her and pulled my firearm and risked
my freedom, that’s incredible.”
When asked if he experienced any regret regarding what he did to the
victim, the defendant stated, “I regret a lot of things. The most thing I
regret is wasting our time.” The defendant then stated that this case “cost
me nine months in jail. It cost me attorney fees. It’s probably going to
cost me my freedom.”
The defendant also continued to actively maintain his innocence. The
defendant said to the court, “If I was committed or if I knew that I was
guilty, Your Honor, I would say I did it.” When asked to address the victim,
the defendant said, “If she wants an apology from me, I would say more
that [sic] greatly that I’m sorry with no shame at all. I’m sorry for all the
things that we argued about. I’m sorry for letting you down, basically. But
she let me down, too.”
After the hearing, the trial court granted the defendant’s motion for
downward departure, finding that “it is the sentence of the Court with
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regard to the motion for downward departure, I do find that the Court can
depart based upon the fact that this was an isolated incident done in an
unsophisticated manner for which the defendant has shown remorse.”
The trial court imposed, over the state’s objection, two years of community
control followed by three years of probation. The state appeals the trial
court’s downward departure.
We review a downward departure with a two-step process. State v.
Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012). In the first step, “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.” Id. In
the second step, the appellate court then decides whether the trial court
abused its discretion in granting a downward departure motion. Id.Section 921.0026(2)(j) allows for a downward departure only when
“[t]he offense was committed in an unsophisticated manner and was an
isolated incident for which the defendant has shown remorse.” This court
must reverse if it finds that any of the three elements are unsupported by
competent substantial evidence. Bellamy v. State, 199 So. 3d 480, 482
(Fla. 4th DCA 2016).
In our analysis of the first step of the two-step process, we find that the
trial court erred in determining there was competent substantial evidence
of the defendant’s remorse. Since we find that there was insufficient
evidence of remorse, and all three elements must be established, we need
not determine if there was competent substantial evidence of the other two
elements: isolated incident and unsophisticated manner. Based on this
determination, we also need not reach the second step of the two-step
process.
Remorse is defined as “[a] strong feeling of sincere regret and sadness
over one’s having behaved badly or done harm; intense, anguished self-
reproach and compunction of conscience, esp. for a crime one has
committed.” Black’s Law Dictionary (11th ed. 2019); accord State v.
Lindsay, 163 So. 3d 721, 725 (Fla. 5th DCA 2015); see also State v. Milici,
219 So. 3d 117, 122 (Fla. 5th DCA 2017) (stating that accepting
responsibility for a defendant’s actions is a requisite to a finding of
remorse).
During the sentencing hearing, the defendant actively maintained his
innocence and refused to accept responsibility for the crime. The
defendant said to the court, “If I was committed or if I knew that I was
guilty, Your Honor, I would say I did it.” Not only did he refuse to accept
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responsibility for the crime, but he even insinuated that the victim
fabricated the incidents: “For someone just to say and run to the police
station and say that I hit her and pulled my firearm and risked my
freedom, that’s incredible.” It goes without saying that “[i]t is impossible
for a defendant who refuses to accept responsibility for an offense to show
remorse for that offense.” State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA
2005); see also State v. Henderson, 152 So. 3d 49, 51 (Fla. 5th DCA 2014)
(finding that denying a crime at the sentencing hearing is inconsistent with
a finding of remorse).
The defendant relies on one statement where he said he was sorry to
the victim, but this statement was surrounded by words of blame: “If she
wants an apology from me, I would say more that [sic] greatly that I’m
sorry with no shame at all. . . . I’m sorry for letting you down, basically.
But she let me down, too.” (emphasis added). Even in a light most favorable
to the defendant, his half-hearted expression of being sorry for letting the
victim down was more akin to sympathy than true remorse. “The fact that
[the defendant] is sorry that [the victim] was injured . . . is sympathy and
not remorse.” State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998)
(expressing concern for the victim is not enough for a finding of remorse
when the defendant does not accept responsibility for his actions). Once
again, it should be clear that blaming someone else for your own conduct
does not demonstrate remorse for your own actions.
When given an opportunity to express any “regret” about what the
defendant did to the victim in this case, the defendant merely talked about
himself when stating that he regretted “a lot of things.” Instead of
recognizing the victim’s sufferings, he reiterated his own problems: “I’m
not willing to sacrifice my freedom of a great mind that will never get put
to use. It’s hard for me that I suffered in jail for nine months.” He did not
express concern for the victim and her injuries, but rather expressed more
concern over what the case cost him—namely money and his freedom: “It
cost me nine months in jail. It cost me attorney fees. It’s probably going
to cost me my freedom.”
Finally, the defendant cannot rely, as he attempts to in this case, on
taking a plea as proof of remorse since “the act of entering a plea and
saying ‘I’m sorry’ is not enough to establish remorse.” State v. Centeno,
192 So. 3d 705, 707 (Fla. 5th DCA 2016). The defendant cannot merely
rely on his change of plea to demonstrate remorse.
In Staffney v. State, 826 So. 2d 509, 513 (Fla. 4th DCA 2002), this court
found no competent substantial evidence supporting the trial court’s
finding of remorse where the defendant “never claimed responsibility for
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his criminal behavior,” “maintained his innocence,” and “apologized for
what had happened to the victim but continued to deny that he was
responsible for his actions.” Similarly, in the present case, the defendant
never clearly or forthrightly accepted responsibility for his own actions.
Thus, we find there was not competent substantial evidence to support
a finding of remorse by the defendant. Since all three elements must be
demonstrated for the trial court to grant a downward departure, the
absence of lack of remorse by the defendant mandates that this case be
reversed and remanded for a resentencing.
Reversed and remanded for resentencing.
KLINGENSMITH and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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