5D07-921 State v. Malik Stephenson

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-921

Case Date: 02/11/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

STATE OF FLORIDA, Appellant, v. MALIK GARCIA STEPHENSON, Appellee. ________________________________/ Opinion filed February 11, 2008 Appeal from the Circuit Court for Seminole County, Clayton D. Simmons, Judge. Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee. Case No. 5D07-921

ORFINGER, J. The State of Florida appeals the downward departure sentence imposed on Malik G. Stephenson after he pled no contest to aggravated fleeing and eluding in violation of section 316.1935(3), Florida Statutes (2006), and one count of resisting an officer without violence, in violation of section 843.02, Florida Statutes (2006). 1 The trial

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The sentence for this offense is not challenged on appeal.

court determined that a downward departure sentence was appropriate because Mr. Stephenson (1) expressed remorse for his crimes; (2) had several family members dependent upon him for support; and (3) had not reoffended during the fourteen-month period since being released from prison. The State argues that the departure grounds relied on by the trial court were either legally insufficient or factually unsupported, and consequently, the downward departure sentence was error. We agree and reverse. On the night of his arrest, Mr. Stephenson was sitting in a parked car when he was approached by a police officer who detected a strong odor of marijuana coming from the car. The officer identified himself, and asked Mr. Stephenson to step out of the car. Mr. Stephenson refused and quickly drove away, almost hitting the police officer in the process. After running several red lights and sideswiping another car, Mr.

Stephenson was forced to stop when his front tires began to separate from the rims. He then jumped from the vehicle and fled on foot, only to be captured a short time later. As the police moved in to capture him, Mr. Stephenson stabbed himself in the neck, requiring extensive medical treatment. After Mr. Stephenson pled no contest to the charges, a sentencing hearing was conducted at which the State sought habitual felony offender sentencing . The court declined to impose an habitual felony offender sentence, finding that although Mr. Stephenson qualified as an habitual offender, an extended sentence was not necessary for the protection of the public. 2 Mr. Stephenson then presented mitigating evidence to the court, hoping for a downward departure sentence. That evidence demonstrated that since his last conviction in 2001 (coincidently for aggravated fleeing and eluding and

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