FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Barbara Twine
Moody, Attorney General, Tallahassee, and Linsey
Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for
L. Dimmig, II, Public Defender, and Carly J. Robbins-Gilbert,
Assistant Public Defender, Bartow, for Appellee.
State of Florida appeals the downward departure prison
sentence imposed on Claudell Johnson arising from his
convictions of grand theft of a motor vehicle and dealing in
stolen property. The State argues the trial court's
mitigating reasoning is not supported by competent,
substantial evidence, and we agree. Accordingly, we reverse
Mr. Johnson's sentence and remand to the trial court so
that he may be properly sentenced in accordance with his
Criminal Punishment Code (Code) scoresheet and chapter 921,
Florida Statutes (2018).
jury found Mr. Johnson guilty of grand theft of a motor
vehicle and dealing in stolen property, the trial court
proceeded to sentencing for those charges, as well as the
violations of probation in his six other felony cases.
Pursuant to Mr. Johnson's scoresheet, the lowest
permissible prison sentence was 85.95 months (approximately
seven years and two months). The defense stipulated to the
accuracy of the scoresheet, but argued that Mr. Johnson's
prior offenses, which were more than ten years old, would not
be calculated into his scoresheet but for his 2013
misdemeanor conviction for driving with a suspended license.
The defense acknowledged this was not a mitigating factor
contemplated in the applicable sentencing statute. Without
factoring in the prior offenses, the lowest permissible
sentence Mr. Johnson could receive significantly dropped from
85.95 to 20.85 months (one year and seven months).
counsel acknowledged there was no legal authority allowing
trial court to disregard Mr. Johnson's 2013 offense and
the trial court recognized its limited discretion and
frustration with the guidelines:
This is a classic challenge that I have and I want you to
hear me out if for no other reason than it allows me to
ventilate. We constantly have these very hard choices where I
have no latitude, where I have no discretion sometimes where
the plea offer is far more generous.
So these 85 months [referring to Mr. Johnson's
scoresheet] would be seven years in prison for a hundred
[B]ut that is the assertion we're confronted with here
today all for a hundred dollars. At best, bone-headed, very
unfortunate. And the court always is here trying to reconcile
these extremes. . . .
the trial court, relying upon the mitigating factor in
section 921.0026(2)(c), which was not argued by the defense,
departed from the lowest permissible sentence stating:
His 2013 traffic matter is what allows his priors before 2006
to be scored and the court is persuaded that he did not have
the benefit of an understanding that that would have the
impact that it has, and it was a traffic violation. So the
court uses that as ground for mitigation downward to not give
him the full ...