Third District Court of Appeal
State of Florida
Opinion filed February 9, 2022.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D20-1220 & 3D20-1302
Lower Tribunal No. F19-13935
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The State of Florida,
Appellant/Appellee,
vs.
Duane Lamar Jones,
Appellee/Appellant.
Appeals from the Circuit Court for Miami-Dade County, Marisa Tinkler
Mendez, Judge.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General, for appellant/appellee.
Carlos J. Martinez, Public Defender, and James A. Odell, Assistant
Public Defender, for appellee/appellant.
Before EMAS, SCALES and GORDO, JJ.
EMAS, J.
INTRODUCTION
The State appeals a downward departure sentence imposed by the
trial court following defendant’s trial and conviction on the charges of
burglary of an occupied dwelling and violation of a domestic violence
injunction. The defendant cross-appeals, contending the trial court erred in
denying his motion for judgment of acquittal as to the burglary charge.
We affirm without discussion the defendant’s cross-appeal and, for the
reasons that follow, we reverse the trial court’s downward departure
sentence.
FACTS AND BACKGROUND
The defendant was convicted in February 2020 following a trial, and
was originally scheduled to be sentenced on March 11, 2020. Under the
Criminal Punishment Code Scoresheet, Florida Rule of Criminal Procedure
3.992, the lowest permissible sentence for defendant was twenty-one
months’ state prison (and a statutory maximum of fifteen years’ state prison).
However, after a delay in the sentencing date, and the onset of COVID-
19, the defendant sought a downward departure of two years’ community
control followed by three years’ probation, on the basis that “Mr. Jones
should not be sentenced to incarceration in order to prevent the spread of
COVID-19” and that “incarcerating Mr. Jones would endanger the health of
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corrections staff inmates, and Mr. Jones.” Defendant cited to statistics of the
World Health Organization regarding the global pandemic, as well as
statistics for the State of Florida showing that (at the time of the sentencing)
over 31,000 Floridians had tested positive for the virus, over 1000 in Florida
had died of COVID, and there were 11,000 confirmed cases and 300 deaths
in Miami-Dade County.
Defendant further contended that because COVID-19 was “rampant in
the jail” and because jails across the country had become hotspots for the
spread of COVID-19, jail inmates were at greater risk to contract the virus.
Defendant also noted that there was in place a federal order directing that
the corrections officials provide adequate social distancing in Miami-Dade’s
local jails and provide evidence of the list of measures being taken to protect
vulnerable inmates who are over sixty years old or who have underlying
health conditions.
Defendant was fifty years old at the time of sentencing, and the only
medical evidence—specific to defendant—presented in support of his
request for a downward departure sentence was the testimony of
defendant’s father that his son suffered from high blood pressure. No
medical testimony, documentation or other evidence was introduced in
support of this claim, and the defendant himself did not testify.
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The trial court inquired if there was any other basis relied upon by
defendant to support his request for a downward departure sentence. 1
Defense counsel responded:
No, nothing further. The bulk of our argument lies with the fact
that there is a global pandemic, and putting him in an
incarcerative setting would only further the spread of that virus.
Not only put himself in danger, but all the other people in danger
as well, at a time when there have been significant efforts to try
to limit the capacity of people in incarcerative settings.
The State countered that the existence of a pandemic (and the
potential for increased transmissibility within the confines of a jail or prison
setting) was by itself legally inadequate to support a downward departure.
The State suggested, as an alternative, deferring defendant’s surrender to a
date when the spread of COVID-19 did not present a heightened risk of
transmission. The State also contended that the father’s testimony about his
son’s high blood pressure was not competent substantial evidence to
support a downward departure sentence.
Although the trial court did note the testimony of defendant’s father,
the trial court did not rely upon it as a basis for its downward departure
1
The trial court expressly rejected the other two bases asserted by
defendant in support of his motion for downward departure: that defendant
lacked the capacity to understand the burglary statute, and the legislative
intent of the burglary statute. These are not at issue here.
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sentence, noting that the defendant’s age (less than sixty years old) did not
place him in a high risk category according the Centers for Disease Control
and Prevention and, more importantly, concluding: “What Defense did not
present to the Court, other than a verbal statement, I did not receive any
medical records or any evidence, again, other than the testimony of Mr.
Jones’ father, that Mr. Jones is in a high risk category of individuals that
might be more susceptible to contracting the virus.”
Nevertheless, the trial court imposed a downward departure sentence
of two years’ community control followed by eight years’ probation,
articulating the following basis:
So I wonder whether or not, because Mr. Jones has been under
supervision of the Court over the past year, whether or not Mr.
Jones—what would be an appropriate punishment for Mr.
Jones... given the extent of illness that has permeated the jails
and prison, what benefit it would serve to essentially punish Mr.
Jones in that fashion....
So for the following reasons, the Court is going to find that, given
all of the circumstances presented, the fact that the Covid virus
is so rampant, and continues to be so rampant in the county jail
and in the prison, that I find that those circumstances do justify
my departing downward from the sentencing guidelines.
ANALYSIS AND DISCUSSION
Section 921.0026, Florida Statutes (2013), entitled “Mitigating
Circumstances,” is part of Florida's Criminal Punishment Code. It
establishes guidelines for imposing downward departure sentences, and
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provides a non-exhaustive list of circumstances under which a downward
departure may lawfully be imposed. This section provides in pertinent part:
A downward departure from the lowest permissible sentence, as
calculated according to the total sentence points pursuant to s.
921.0024, is prohibited unless there are circumstances or factors
that reasonably justify the downward departure. Mitigating
factors to be considered include, but are not limited to, those
listed in subsection (2). The imposition of a sentence below the
lowest permissible sentence is subject to appellate review under
chapter 924, but the extent of downward departure is not subject
to appellate review.
§ 921.0026(1), Fla. Stat. (2013).
Because the statutory list of mitigating circumstances is not exclusive,
Florida courts have held that a basis for downward departure will be upheld
if there is competent substantial evidence to support the stated basis, so long
as the purported basis for departure is consistent with legislative sentencing
policies and is not otherwise prohibited. State v. Hodges, 151 So. 3d 531
(Fla. 3d DCA 2014); State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013).
Our Supreme Court has described the proper analysis to be engaged
in by a trial court considering a downward departure, and an appellate court’s
corresponding scope and standard of review of the trial court’s decision:
A trial court's decision whether to depart from the guidelines is a
two-part process. First, the court must determine whether it can
depart, i.e., whether there is a valid legal ground and adequate
factual support for that ground in the case pending before it (step
1). . . . This aspect of the court's decision to depart is a mixed
question of law and fact and will be sustained on review if the
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court applied the right rule of law and if competent substantial
evidence supports its ruling.
Second, where the step 1 requirements are met, the trial court
further must determine whether it should depart, i.e., whether
departure is indeed the best sentencing option for the defendant
in the pending case. In making this determination (step 2), the
court must weigh the totality of the circumstances in the case,
including aggravating and mitigating factors. This second aspect
of the decision to depart is a judgment call within the sound
discretion of the court and will be sustained on review absent an
abuse of discretion.
Banks v. State, 732 So. 2d 1065 (Fla. 1999).
The question presented is whether the articulated basis for the
downward departure is legally valid, is consistent with legislative sentencing
policies, and is supported by competent substantial evidence. See Hodges,
151 So. 3d at 534 (holding: “While a trial court may depart for a reason other
than those set forth in section 921.0026(2), it may only do so if the articulated
reason for departure is consistent with legislative sentencing policies and is
not otherwise prohibited”); State v. Cosby, 313 So. 3d 903, 905 (Fla. 2d DCA
2021) (noting that the reason for a departure sentence must be supported
by competent, substantial evidence, and must be consistent with legislative
sentencing policies and not otherwise prohibited); Bowman, 123 So. 3d at
109 (same).
In State v. Saunders, 322 So. 3d 763, 767 (Fla. 2d DCA 2021), our
sister court considered whether the trial court properly imposed a downward
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departure sentence where the defendant asserted, as a basis, the
overcrowding of prisons in the midst of the COVID-19 pandemic. The trial
court, over State objection, imposed a departure sentence on that basis,
noting that despite the lack of evidence regarding the health and vulnerability
of the defendant: “I still think that we have to make every possible attempt to
get people out of the system, and my understanding is the jail is now facing
another overcrowding problem.” Id.
The State appealed the sentence, and the Second District reversed,
holding the downward departure was improper for two reasons. First, the
trial court’s generalized concerns about jail or prison overcrowding could not
serve as a valid basis because it is inconsistent with legislative sentencing
policy “and no case law supports the court’s finding.” Id. at 766-67. See
also State v. Caride, 473 So. 2d 1362, 1363 (Fla. 3d DCA 1985) (“[T]hat the
prison system is already overcrowded, is not a valid justification for a
departure from the guidelines recommended range. This observation, even
if accurate, concerns a matter properly addressed by the legislative and
executive branches”).
Second, the court held that Saunders failed to present competent
substantial evidence in support of his request for a departure sentence,
adding, “although the court inquired about whether Saunders had previously
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been released due to the pandemic, it is not clear whether the court based
its decision to impose downward departure sentences on the pandemic or
the more general [overcrowding] reasons articulated.” Saunders, 322 So.
3d at 767.
Under either reasoning, the Saunders court found the evidence
inadequate:
[T]here was no evidence—much less competent substantial
evidence sufficient to establish a preponderance—supporting
the court's statements. There was no evidence of jail
overcrowding. While we applaud the trial court's appreciation for
the seriousness of the pandemic, there was no evidence
regarding the pandemic, the courts' response to the pandemic,
or Saunders' health or vulnerability in relation to Covid-19.
Id.
We agree with our sister court’s analysis in Saunders. Applying it to
the instant case, the trial court’s first articulated basis for departure—that
“Mr. Jones has been under supervision of the Court over the past year” is
not a valid basis for departure and is inconsistent with legislative sentencing
policy. 2 The second articulated basis for departure—“that the Covid virus is
2
Following his arrest, defendant was released on pretrial house arrest while
awaiting his trial. Following his conviction, the trial court permitted him to
remain on house arrest pending his sentencing. It is this combined period of
pretrial and presentencing house arrest status the trial court referred to when
noting that “Mr. Jones has been under supervision of the Court over the past
year.” It appears undisputed that defendant did not violate his conditions of
house arrest. However, to permit a trial court to rely upon this as a basis for
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so rampant, and continues to be so rampant in the county jail and in the
prison” likewise cannot serve as a valid basis for departure, at least in the
absence of competent substantial evidence that this defendant has an
underlying medical or health condition which places him at increased risk of
contracting COVID-19 if incarcerated in a county jail or state prison. There
was no such showing in the instant case; indeed, the trial court rejected—as
insufficiently established—the one medical condition (high blood pressure)
offered by defendant as a basis for his ostensible increased risk or
vulnerability to COVID-19.
CONCLUSION
We hold that the trial court’s basis for a downward departure sentence
was inconsistent with legislative sentencing policy and was not supported by
competent substantial evidence related to the defendant’s individual health
a downward departure sentence would, in effect, serve as an end-run around
existing statutory law and case law holding that a defendant is not entitled to
receive credit, against his incarcerative sentence, for time spent on house
arrest. See § 921.161(1), Fla. Stat. (2020) (providing in relevant part: “A
sentence of imprisonment shall not begin to run before the date it is imposed,
but the court imposing a sentence shall allow a defendant credit for all of the
time she or he spent in the county jail before sentence.”); Fernandez v. State,
627 So. 2d 1 (Fla. 3d DCA 1993) (holding defendant was not entitled, under
section 921.161(1), to credit against the incarcerative portion of his sentence
for the time he served on house arrest). See also Licata v. State, 788 So.
2d 1063 (Fla. 4th DCA 2001) (same); Myers v. State, 761 So. 2d 485 (Fla.
5th DCA 2000) (same).
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or medical condition and any corresponding increased risk or vulnerability to
COVID-19. We therefore reverse the sentence and remand for a de novo
resentencing hearing.
Reversed and remanded.
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