final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Martin A.
Thomas, Public Defender; and John Knowles and David Henson,
Assistant Public Defenders, Tallahassee, for
Moody, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee/Cross-Appellant.
challenges his judgment and sentence for tampering with a
witness in the investigation of a first-degree felony
punishable by life. The State also appealed, challenging the
trial court's imposition of a downward-departure
sentence. We consolidated the two appeals for all purposes.
The first issue is a purely legal question of statutory
interpretation: whether the witness-tampering statute,
section 914.22(3) of the Florida Statutes, requires
felony-level sentencing if the tampering occurred while a
felony was charged and investigated, even if a jury later
convicts of a lower-level crime. The second issue is whether
the trial court properly imposed a downward-departure
sentence. We have carefully considered all of Appellant's
arguments, finding them without merit. We write to address
Appellant's incorrect interpretation of the
witness-tampering statute, and the trial court's improper
downward departure. We affirm Appellant's convictions,
and reverse and remand for resentencing on the
facts were largely undisputed. Appellant had been in a
physical relationship with two women who themselves were in a
relationship and wanted to have a baby. An incident occurred
in which Appellant entered the first woman's residence,
with the second woman also present; then he punched the first
woman in the side of the head; and had an altercation with
the second woman, including punching her in the face, as she
tried to force him out.
State charged Appellant with two counts of burglary with
assault or battery, a first-degree felony punishable by life
(later dropping the second burglary charge since there was
only one entry). While Appellant was incarcerated before
trial, he persuaded a friend to contact the first victim and
try to get her to drop the charges. The State then charged
Appellant with harassing or tampering with a witness in a
first-degree felony investigation.
trial, Appellant's defense to the burglary charge was
that he had permission to enter the first victim's
residence. After the jury began deliberations, defense
counsel asked the trial court to add jury instructions for
lesser-included offenses on the tampering charge in the event
the jury concluded that Appellant had not committed a felony.
The trial court declined to do so. The jury convicted
Appellant of one count of misdemeanor battery, and found him
guilty as charged of felony witness tampering.
sentencing, defense counsel requested a downward departure to
reflect that although the witness-tampering charge arose
during the investigation or prosecution of a charged felony,
the jury had deemed the underlying act a misdemeanor, which
the defense argued should relate back to reduce the level of
the tampering crime charged. The State disagreed with the
defense's statutory analysis, and requested an 86.1-month
sentence, which was the bottom of the guidelines. The trial
court commented orally that the recommended punishment
"doesn't really fit the crime here, because of the
issues I raised regarding conflicts in the evidence and the
testimony from [the second victim]." The court imposed a
downward-departure sentence of three years, with 161
days' credit for time served. The court provided the
following written reasons for the downward-departure
Based on the evidence presented at trial, as opposed to the
evidence alleged in the probable cause affidavit, Defendant
should have been charged with Domestic Battery on [first
victim]. While there is no statutory basis for departing from
the minimum sentence reflected in the sentencing guidelines,
the facts of this case do not support the ultimate sentence.
Justice would not be served by sentencing this Defendant as
though he was properly charged with a Life Felony of Burglary
with a Person Assaulted when in fact the underlying facts as
found by the Jury supported, at best, a charge of Domestic
reject Appellant's argument that the witness-tampering
conviction should have been reduced to a misdemeanor to
reflect the misdemeanor battery verdict. This argument is
contrary to the plain language of the statute, which equates
the level of the tampering offense with the level of the
crime charged during the investigation. We also find
that the trial court improperly entered a downward-departure
sentence. We address the two issues in turn.
witness-tampering statute, section 914.22(3), first defines
the crime and then sets forth different levels of offense
depending on the level of underlying ...