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State v. Milici

Florida Court of Appeals, Fifth District

April 28, 2017

STATE OF FLORIDA, Appellant,
v.
JOSEPH MICHAEL MILICI, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Flagler County, Matthew M. Foxman, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.

          James S. Purdy, Public Defender, and Jeri M. Delgado, Assistant Public Defender, Daytona Beach, for Appellee.

          OPINION

          WALLIS, J.

         The State appeals the trial court's imposition of downward departure sentences following Joseph Michael Milici's violation of probation ("VOP"). We reverse Milici's sentences and remand for resentencing consistent with this opinion.

         FACTS

         In May 2011, the State charged Milici by information with principal to robbery with a weapon (count 1) and principal to aggravated assault with a deadly weapon (count 2).[1]The State alleged that Milici obtained a fraudulent prescription for oxycodone that he could not fill at a local pharmacy, despite numerous attempts. Milici and his co-defendant then drove to a nearby department store, where the co-defendant purchased a pellet gun. Milici drove back to the pharmacy and dropped off his co-defendant, who entered the store while Milici waited outside. The co-defendant proceeded to brandish the pellet gun at the clerk and steal eight bottles of oxycodone. Milici served as the getaway driver following the robbery.

         In January 2013, Milici entered a plea of nolo contendere to both counts. The trial court sentenced him to fifteen years' incarceration, suspended upon completion of two years' community control, followed by ten years' probation (count 1) and five years' incarceration, suspended upon completion of two years' community control, followed by two years' probation (count 2). In March 2013-only two months into his community control-Milici was arrested and charged with sale of a schedule II controlled substance and sale of a schedule IV controlled substance. Thereafter, the State filed a VOP report, but the trial court adjudicated Milici incompetent. The trial court modified the conditions of Milici's community control, ordering him to remain at a residential facility and comply with their rules. In March 2016, the State filed an addendum to the March 2013 violation report, alleging that Milici violated his community control after being evicted from the residential facility for using controlled substances. The trial court adjudicated Milici competent pursuant to a new competency evaluation.

         The trial court held a revocation hearing in April 2016. At the hearing, the State explained that a confidential informant who knew Milici contacted him and requested to purchase two types of prescription drugs. Milici left a bottle of pills by an electrical pole in front of his house and told the confidential informant to take the pills and leave the money in the same place. After completing the transaction, the confidential informant requested more pills. Approximately one hour later, Milici sold the confidential informant additional pills by a hand-to-hand transaction. Law enforcement arrested Milici and charged him with three counts for sale of a controlled substance. The trial court granted the State's motion to revoke Milici's community control, and the case proceeded to a VOP hearing.

         At the VOP hearing, Milici admitted to violating his probation and entered an open plea of nolo contendere to the three counts for sale of a controlled substance. At the sentencing hearing, Milici presented testimony from several witnesses, including his two sisters, his pastor, a crisis counselor, and the owner of the group home at which he previously resided. Milici's witnesses testified that Milici was generally a good person who, despite making several errors in judgment, did not pose a danger to the community. Milici's witnesses believed that he could be rehabilitated into a functioning member of society.

         Regarding the robbery, Milici testified that he drove the car without any knowledge that his co-defendant intended to rob the pharmacy. He also minimized the subsequent drug transactions, describing the event as him simply providing the pills to his friend as a favor. Milici rejected the notion that he was a drug dealer by stating, "You know, I wasn't out there like selling the drugs the way [the State's] making it sound. Somebody asked me for some pills. And I did it."

         Following Milici's testimony, defense counsel urged the trial court to impose a downward departure sentence. After considering argument from both sides, the trial court ultimately determined that the circumstances justified downward departure.[2] The trial court explained that Milici's conduct amounted to "an isolated incident for which . . . Milici has shown remorse." The trial court further explained that Milici acted "in an unsophisticated manner." Based on these findings, the trial court imposed a downward departure sentence of thirty days' incarceration, followed by one year of community control, followed by three years' probation. Without the departure, Milici's scoresheet reflected a minimum sentence of 88.5 months' incarceration.

         The trial court subsequently entered an order detailing the grounds for imposing ...


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