Rehearing Denied March 23, 2012.
[Copyrighted Material Omitted]
Pamela Jo Bondi, Attorney General, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
Antony P. Ryan, Regional Counsel and Ephrat Livni, Assistant Regional Counsel, of the Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
The State appeals a final order granting a downward departure from the sentencing guidelines for Defendant John Henry Simmons. Simmons cross-appeals his conviction and sentence for burglary of a conveyance, arguing that the trial court erred in granting the State's request to instruct the jury on attempted burglary where the unrebutted evidence established that the burglary had been completed. We reverse the downward departure sentence for the reasons hereinafter stated. With respect to the attempted burglary instruction, we affirm because the issue was not preserved for review. Finally, we affirm without discussion the trial court's denial of Simmons's motion for judgment of acquittal.
Simmons was charged by information with burglary of a conveyance. The case proceeded to trial. The sole witness was a City of Palm Beach Gardens police officer. The officer described a sting operation, which was set up in the parking lot of a business. The purpose of the operation was to catch thieves stealing packages from vehicles. In order to do so, officers left an unoccupied pickup truck in the parking lot. In the back of the truck, the officers placed a box which, from its markings, appeared to contain a pressure cleaner. The scene was monitored by the testifying officer, who was positioned in an unmarked vehicle approximately sixty feet south of the truck. Simmons was observed pulling up in a vehicle from the opposite direction and parking alongside the pickup truck. Simmons exited his vehicle and walked around the pickup truck two times, at which point he reached over into the bed of the pickup truck with his hands and arms as if he was grabbing the box. Simmons then walked to the rear of the pickup truck, dropped the tailgate of the truck, reached inside the truck bed, and grabbed the box. Simmons's arrest followed.
During the jury instructions conference, Simmons initially requested an attempted burglary instruction, but later withdrew the request. The State, however, requested the " attempt" instruction. The " attempt" instruction was given as a lesser included offense. The instruction for the lesser included offense of trespass was also given. No objection was made in connection with the instructions.
The jury returned a verdict finding Simmons guilty of attempted burglary of a conveyance. At various times during and after the trial, Simmons moved for judgment of acquittal or a new trial. However, it was not until several months after trial that defense counsel orally raised that the " attempt" instruction was improper as it was a category two lesser-included offense. The State argued that it was entitled to the instruction. On each occasion, the trial court denied Simmons's motions.
At sentencing, Simmons moved for a downward departure sentence, arguing as a mitigating factor that the officers had, by staging the sting operation, enticed him to commit the crime. Simmons never admitted
that the crime occurred and did not assert entrapment as a defense at trial. The State objected to any departure on the grounds that the facts did not support such. The court granted the motion for downward departure based on the enticement offered by law enforcement to commit the crime. Over the State's objection, the trial court gave Simmons a sentence less than the minimum sentence under the Criminal Punishment Code.
We first address whether the trial court erred by imposing a downward departure sentence. Appellate courts apply a mixed standard of review when analyzing 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 ...