STATE V. FORD

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STATE V. FORD

State: Florida

Court: Florida Third District Court

Docket No: 09-1659

Case Date: 12/01/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 01, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-1659 Lower Tribunal No. 08-32521 ________________

The State of Florida,
Appellant, vs.

John W. Ford,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Nushin Sayfie, Judge. Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellant. Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ. ROTHENBERG, J.

The defendant was charged with burglary and possession of burglary tools, and according to the sentencing guidelines, the lowest permissible sentence he could receive upon a conviction was 48.6 months. Although the State was seeking an enhanced penalty pursuant to the habitual offender statute, the trial court departed downward and sentenced the defendant to three years of probation with special conditions. The State appeals the defendant's downward departure

sentence. Because there is insufficient competent evidence to support the trial court's ruling, we reverse. In State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006), this Court held that the decision whether to depart downward from the sentencing guidelines is a twopart process. First, the trial court must determine whether there is a valid legal ground for a downward departure and whether there is adequate factual support for the ground for departure. Second, if there is a valid basis for the trial court to permissibly depart, it must determine whether departure is the best sentencing option for the defendant in the pending case. In other words, the first prong is whether the trial court can legally depart and the second prong is whether the trial court should depart. The trial court's determination regarding the first prong is a mixed question of law and fact, which will be sustained on review if the trial court applied the correct rule of law and there is competent substantial evidence to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion.

2

Id. at 15. Section 921.0026, Florida Statutes (2008), allows a trial court to depart downward from the lowest permissible sentence under the guidelines when the circumstances "reasonably justify the downward departure." The subsection the trial court relied on in its downward departure in the instant case is subsection (2)(d), which permits a downward departure where: "The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment."

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