FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Pat Siracusa, Judge.
Jo Bondi, Attorney General, Tallahassee, and Chelsea S.
Alper, Assistant Attorney General, Tampa, for Appellant.
L. Dimmig, II, Public Defender, and Lisa Lott, Assistant
Public Defender, Bartow, for Appellee.
Lackey pleaded guilty to one count of first-degree burglary,
two counts of second-degree burglary, and one count of
attempted second-degree burglary in three consolidated
proceedings. At Mr. Lackey's request, the circuit court
imposed a downward departure and sentenced him to ten years
of probation to run concurrently as to all four counts, which
the State appeals. We agree that, on these facts, the record
did not support a downward departure sentence.
the Pasco County circuit court accepted Mr. Lackey's plea
and commenced a sentencing hearing in November of 2015, the
defense indicated (and the State appeared to accept) that Mr.
Lackey would likely qualify for a youthful offender
designation pursuant to section 958.04, Florida Statutes
(2015). Mr. Lackey's sentencing hearing,
however, was continued and not completed until June 30, 2016.
In the months between the November plea hearing and the
continued sentencing hearing in June, the Pinellas County
circuit court applied a youthful offender designation to Mr.
Lackey in a separate criminal proceeding. The youthful
offender designation in the Pinellas County proceeding
effectively eliminated the ability of the Pasco County
circuit court to apply the designation to the four charges
that underlie this appeal. See § 958.04(1)(c);
Christian v. State, 84 So.3d 437, 441 (Fla. 5th DCA
2012) ("Youthful offender sentencing is not available
for . . . defendants who have been sentenced pursuant to the
Youthful Offender Act for a prior offense.").
Pasco County circuit court expressed some degree of
frustration when it learned of this development at the
continued sentencing hearing. As the court observed, the
Pinellas County case designation deprived Mr. Lackey of what
had likely been an available youthful offender designation in
the Pasco County proceeding; and the guideline sentencing
range Mr. Lackey faced in the Pasco County proceeding was
more severe than the one he would likely face in the Pinellas
County proceeding. Without the youthful offender designation,
Mr. Lackey's Criminal Punishment Code scoresheet in the
Pasco County proceeding indicated a lowest possible prison
sentence of 64.05 months. The Pasco County circuit court,
however, sentenced him to probation for all four felony
counts. Unable to lawfully apply a youthful offender
designation, the presiding judge stated that he was imposing
a downward departure for Mr. Lackey's sentence because of
the "need for restitution." The circuit court
provided no written findings as required under section
921.002(1)(f), Florida Statutes (2015). Cf. State v.
Naylor, 976 So.2d 1193, 1196 (Fla. 2d DCA 2008) (noting
that the trial court must articulate in writing its reasons
supporting a downward departure, but if no written reasons
are filed, the trial court's oral findings at the
sentencing hearing can be sufficient if supported by
competent, substantial evidence). The State now appeals that
is a mixed standard of review for appeals of downward
departure sentences. See State v. Johnson, 224 So.3d
877, 879 (Fla. 2d DCA 2017). First, we "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. (quoting State v.
Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012)). If
so, then we must "decide whether the trial court [abused
its discretion] in determining that the downward departure
sentence was the best sentencing option for the defendant by
weighing the totality of the circumstances in the case."
Id. (alteration in original) (quoting
Simmons, 80 So.3d at 1092). The defendant bears the
burden of presenting competent, substantial evidence to
support the reason for a downward departure. See State v.
Carlson, 911 So.2d 234, 236 (Fla. 2d DCA 2005)
("[T]he trial court may not impose less than the lowest
permissible sentence required by the Code unless the
defendant establishes a valid basis for departure.");
State v. Browne, 187 So.3d 377, 378 (Fla. 5th DCA
2016) ("The defendant bears the burden of proving a
departure factor by the preponderance of the
trial court must impose a guidelines sentence unless the
court finds that the evidence supports a valid reason for a
departure sentence." State v. Barnes, 753 So.2d
605, 606 (Fla. 2d DCA 2000). One potential valid reason,
section 921.0026(2)(e), Florida Statutes, provides that a
downward departure beneath the lowest permissible sentence
under the Criminal Punishment Code may be issued if
"[t]he need for payment of restitution to the victim
outweighs the need for a prison sentence." The Fifth
District summarized when such a need can justify a downward
departure in a criminal sentence:
[A] downward departure is only justified if the harm suffered
by the victim as a result of the theft was greater than
normally expected, and restitution could mitigate that
increased harm. Demoss v. State, 843 So.2d 309, 312
(Fla. 1st DCA 2003). Thus, a downward departure will be
reversed where the record does not support a conclusion that
there is a pressing need for restitution. See
[State v. ]Schillaci, 767 So.2d [598, ] 600 [(Fla.
4th DCA 2000)]. In weighing the need for restitution against
the need for imprisonment, a sentencing court must also take
into consideration relevant factors such as the nature of the
loss, the efficacy of restitution, and the consequences of
imprisonment. See Banks[ v. State], 732 So.2d [1065,
] 1069 [(Fla. 1999)]. In considering the efficacy of
restitution, the trial court must evaluate "the power of
the restitution plan to restore the victim to his or her
previous state, " which includes the defendant's
ability to pay restitution and the impact of the restitution
plan on the victim. Demoss, 843 So.2d at 312.
State v. Wheeler, 180 So.3d 1117, 1119 (Fla. 5th DCA
2015). However, as we emphasized in Naylor, 976
So.2d at 1196, "[w]hen a downward departure sentence is
imposed based on the need for restitution, some evidence of
the victims' needs must be presented to the
trial court to support a downward departure sentence."
(citing Demoss, 843 So.2d at 312-13).
case before us, we must agree with the State that there was
no evidence to support restitution as a basis for a downward
departure on this record. The stolen property at issue in the
Pasco County proceeding included several thousand
dollars' worth of stolen cigarettes from convenience
stores and cash and personal belongings stolen from an
individual with whom Mr. Lackey had been living. There was no
evidence presented of any "pressing need" for
restitution by any of the victims of Mr. Lackey's crimes.
See Wheeler, 180 So.3d at 1119 ("[A] downward
departure will be reversed where the record does not support
a conclusion that there is a pressing need for
restitution."). To the contrary, the one victim who
provided an impact statement in connection with Mr.
Lackey's sentencing hearing (and who had apparently
attended nearly every hearing in his criminal proceeding)
stated unequivocally that the camcorder and laptop that were
stolen from her-which held treasured family photographs and
video footage-"can never be replaced or
replicated." This victim actually expressed a desire
that Mr. Lackey serve a prison sentence.
there was no showing of a need for restitution by any victim,
or that restitution would be effective, we do not find
competent, substantial evidence in this record to justify a
departure beneath the Criminal Punishment Code's minimum
prison sentence under section 921.0026(2)(e). See
Naylor, 976 So.2d at 1196-97. While the circuit court
may have felt compelled to impose the downward departure that
it did, on the facts presented to the court, it could not do
so on the ground of restitution. Accordingly, we reverse Mr.
Lackey's sentences and remand for resentencing in
conformance with the Criminal Punishment Code, which may
include a new downward departure sentence if there are valid
legal grounds to support the departure ...