5D02-565 State v. Faulk

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-565

Case Date: 02/10/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003

STATE OF FLORIDA, Appellant, v. JEFFREY R. FAULK, Appellee. / Opinion Filed February 14, 2003 Appeal from the Circuit Court for Orange County, Bob Wattles, Judge. Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant. James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellee. GRIFFIN, J. The State of Florida appeals a downward departure sentence. We reverse. On August 25, 2001, Jeffrey R. Faulk ["Faulk"] was seen placing an automobile battery from the service bay of a U-Haul dealership in the trunk of his vehicle. When confronted by a U-Haul employee, Faulk allegedly attempted to run away and struggled with the employee. However, he waited for police to arrive. He was arrested and ultimately charged by information with robbery with subsequent force and misdemeanor trespass in a structure. At a hearing which took place on January 30, 2002, the record suggests that plea CASE NO. 5D02-565

discussions involving the trial judge took place off the record. When the parties went on the record, the trial judge characterized these discussions as follows: Mr. Faulk, the court made an offer to your attorney to resolve this case. Faulk's guidelines scoresheet showed a minimum permissible sentence of 40.65 months in the Department of Corrections. The "offer" was to impose a downward departure sentence for the robbery of five years suspended, upon the successful completion of two years of community control, followed by three years probation, in exchange for a plea. The judge then said: * * * Well, you want to reject the offer at this time or you want to accept the offer? You reject the offer it's not going to be made again. I'm not going to make the offer again. You would go to trial. Those are potentially the sentence [sic] you could receive. I haven't heard the evidence of yet but you could receive up to fifteen years in state prison. (Emphasis added). Faulk indicated some initial reluctance to accept the court's offer, explaining he was working two jobs and was worried he would not be able to comply with the requirements of community control. The court reiterated that Faulk could do substantial prison time if he failed to accept the court's offer for a plea and noted that he could apply to have the community control converted to probation after one year if he had no violation. Faulk ultimately accepted the court's offer and pled nolo contendere to both robbery and trespass, with the understanding that he would receive five years in the Department of

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Corrections for the robbery, suspended upon the successful completion of two years of community control, followed by two years of probation. He was sentenced to time served (twenty-two days) for the misdemeanor trespass. Upon the acceptance of this plea and the imposition of this sentence, the prosecutor objected that the sentence constituted a downward departure without valid reasons. The prosecutor explained that: This is his at lest [sic] eighth guilty conviction. As I noted earlier to the court in Mr. Martinko's presence, he does not qualify as for any kind of sentencing enhancement. He's not habitual felony offender prison releasee reoffender, however, per scoresheet he should be on the bus to DOC for this offense. And so we're objecting to him not receiving at least forty point six five months in the Department of Corrections. Appears to be no legal basis for downward departure from what I seen [sic] any of the facts of the case. The following reasons for a downward departure were then offered by the court: THE COURT: Okay. We would find as a reason of mitigation offense was committed in an unsophisticated manner, isolated incident. He's not had any problems for almost six years. And also noted, I guess, it was a car battery that was the subject matter of this in dispute between the two individuals and would be a basis for the downward departure from the court's position. Okay, Mr. Faulk, you're all set. DEFENSE COUNSEL: Thank you, sir. THE PROSECUTOR: For the record I don't believe

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