State v. Raymundo Centeno, Jr.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D14-4664
RAYMUNDO CENTENO, JR.,
Appellee.
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Opinion filed June 3, 2016
Appeal from the Circuit Court
for Orange County,
Michael Murphy, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellant.
James S. Purdy, Public Defender, and
Allison A. Havens, Assistant Public
Defender, Daytona Beach, for Appellee.
BERGER, J.
The State of Florida timely appeals the trial court’s decision to impose a downward
departure sentence on Raymundo Centeno, Jr., after Centeno entered a plea of no
contest to burglary of a dwelling and petit theft. The State argues that the sole reason
given for the departure was unsupported by substantial, competent evidence. We agree
and reverse.
Centeno was charged with burglary of a dwelling and petit theft after he entered
the victim’s garage and stole a yard trimmer. He entered an open plea on both charges
and was sentenced immediately thereafter. Based on his scoresheet, the lowest
permissible sentence Centeno could receive under the Criminal Punishment Code was
twenty-four months in the Department of Corrections. However, despite his score, the
trial court imposed a downward departure sentence of two years community control with
drug offender special conditions because "[t]he offense was committed in an
unsophisticated manner and was an isolated incident for which the defendant has shown
remorse." § 921.0026(2)(j), Fla. Stat. (2013)
"A downward departure sentence will be affirmed if the reason given for the
departure is permissible and is supported by substantial, competent evidence." State v.
Burt, 183 So. 3d 1117, 1118 (Fla. 5th DCA 2015) (citing State v. Bell, 854 So. 2d 686,
690 (Fla. 5th DCA 2003)). Three elements must be shown in order to establish the
existence of the mitigating circumstance listed in section 921.0026(2)(j). Id. First, the
offense must have been "committed in an unsophisticated manner." Second, the offense
must have been "an isolated incident." And, third, the defendant must have "shown
remorse" for the offense. All three elements must be established to justify a downward
departure on this basis. See id. (citing State v. Geoghagan, 27 So. 3d 111, 114 (Fla. 1st
DCA 2009); State v. Jerry 19 So. 3d 1167, 1170 (Fla. 1st DCA 2009)); State v. Thompkins,
113 So. 3d 95, 98 (Fla. 5th DCA 2013) (citing State v. Brannum, 876 So. 2d 724 (Fla. 5th
DCA 2004)); State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (citing State v.
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Cooper, 889 So. 2d 119, 119 (Fla. 4th DCA 2004)). We conclude that none of the
elements have been established in this case and begin our analysis with the most
obvious.
Centeno’s criminal history spans nearly a decade and consists of three prior
felonies and seven prior misdemeanors. His prior felony record includes possession of
cocaine, attempted tampering with physical evidence, and driving while license
suspended (enhanced).1 His misdemeanor record consists of two possession of drug
paraphernalia offenses, three driving while license suspended convictions, resisting an
officer without violence, and petit theft. Notably, like the present case, Centeno’s prior
theft was the result of him stealing a tool from a store. With this record, we cannot
conclude that Centeno’s current offenses are isolated incidents. See State v. Jones, 122
So. 3d 517, 518 (Fla. 5th DCA 2013) (explaining that prior record consisting of two
felonies and two misdemeanors precluded Appellant from showing current offenses were
isolated incidents); Thompkins, 113 So. 3d at 99 (finding significant criminal history,
including a prior conviction for the same crime, indicated crimes were not isolated
incidents within the meaning of section 921.0026(2)(j)); State v. Leverett, 44 So. 3d 634,
637 (Fla. 5th DCA 2010) (determining crime not isolated where defendant had one prior
felony conviction and three misdemeanor convictions); see also Ayers, 901 So. 2d at 945(concluding "[t]he fact that a defendant who has previously committed numerous offenses
has not in the past committed the same crime as the offense for which he is being
sentenced does not mean that the current offense is 'an isolated incident'").
1 The felony driving offense occurred while Centeno was on pretrial release for the
current offense. He was convicted prior to entering his plea in this case.
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Additionally, the record does not support a finding that the crime was committed in
an unsophisticated manner or that Centeno was remorseful. The record reflects that
Centeno walked into an open garage and picked up a lawn edger and blower. When he
was confronted by the homeowner, Centeno told him a friend had given him permission
to use the equipment. The homeowner told Centeno to leave and never come back. After
Centeno left in a waiting vehicle, the homeowner discovered his yard trimmer was
missing. At sentencing, Centeno acknowledged that he was out looking for lawn
equipment and expensive tools because they are worth more money when pawned.
Centeno asserts that the act of walking into an open garage and taking something
off a shelf is unsophisticated because it is merely a crime of opportunity. While this may
very well be the case in some instances, it is not so here. Centeno admitted seeking
items that would garner more money when pawned, and he has a prior conviction for a
similar act. Furthermore, the record supports the conclusion that Centeno entered the
victim’s garage not once, but twice; the first time to steal the trimmer. These additional
facts belie the conclusion that the crimes were committed in an unsophisticated manner.
Moreover, although Centeno entered a plea, he refused to admit he took the
victim’s yard trimmer.2 Under these circumstances, the act of entering a plea and saying
"I’m sorry" is not enough to establish remorse. See State v. Henderson 152 So. 3d 39,
51 (Fla. 5th DCA 2014) (finding defendant failed to show remorse where he pled guilty
but then denied committing the crime at sentencing); Ayers, 901 So. 2d at 945 (holding
that the record did not support element of remorse where defendant continued to deny
2 Centeno acknowledged that his girlfriend admitted to police that they took the
trimmer and discarded it. Nevertheless, he maintained that he did not take the victim’s
trimmer, but rather a different trimmer from a different house.
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responsibility for the offense); State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998)
(concluding "[w]e are certain that [the defendant's] denial of doing 'what [he] was accused
of' is not the kind of remorse contemplated by the legislature.").
Based on the foregoing, we conclude the trial court’s reason for imposing a
downward departure sentence was not supported by substantial, competent evidence.
Accordingly, we reverse Centeno’s sentence and remand for resentencing.
REVERSED and REMANDED.
TORPY and LAMBERT, JJ., concur.
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