Profetto v. State

District Court of Appeal of Florida

Profetto v. State

198 So. 3d 684, 2015 Fla. App. LEXIS 19426, 2015 WL 9487580

CourtDistrict Court of Appeal of Florida

DecidedDecember 30, 2015

Docket2D14-3482

StatusPublished

Cited by1 cases

This text of 198 So. 3d 684 (Profetto v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Profetto v. State, 198 So. 3d 684, 2015 Fla. App. LEXIS 19426, 2015 WL 9487580 (Fla. Ct. App. 2015).

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Opinion

SILBERMAN, Judge.

Thomas J. Profetto seeks review of the orders denying his motion for postconvic *685 tion relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all claims with the exception of part of claim thirteen.

In December 2009, Profetto was convicted of attempted first-degree murder and sentenced to thirty-five years in prison with a twenty-year mandatory minimum. At trial, the State presented evidence that Profetto, Jevon Gibson, and Tatijana Dimic formed a plan to rob another friend by ambushing him at a staged break-down of Dimic’s automobile. The plan did not unfold as expected, however, and Profetto and Gibson ended up charging the victim’s vehicle on foot while firing numerous shots at it. Dimic testified against Profetto in exchange for a sentence of three years in prison followed by twelve years of probation. Gibson did not testify at Profetto’s trial, and the trial transcript does not reveal the outcome of Gibson’s case.

In claim thirteen, Profetto asserted that trial counsel was ineffective when he failed to suggest a downward departure sentence and “to object to the unequal and lesser sentence of his .equally culpable co-defendant at sentencing, who was subject to the same sentencing enhancement as Defendant.” Profetto asserted that the trial court was under the erroneous impression that it could not depart downward on this basis. The postconviction court failed to address this portion of the claim.

We note that the trial court would not have been able to impose a sentence less than the mandatory minimum under the 10-20-Life statute. See State v. Bray, 174 So.3d 488, 489 (Fla. 4th DCA 2015). However, the court could have departed downward from the thirty-five-year sentence based on a codefendant’s lesser sentence if the two were equally culpable and there was not a great disparity in their criminal records. See Sanders v. State, 510 So.2d 296, 298 (Fla.1987); Marchetta v. State, 766 So.2d 1126, 1126 (Fla. 2d DCA 2000).

Profetto’s claim is facially insufficient insofar as it does not offer any specifics regarding the codefendant’s charge, sentence, or prior criminal history. That said, Profetto is entitled to an opportunity to amend this facially insufficient claim. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Accordingly, we reverse the denial of this claim with directions for the court to afford Profetto leave to amend if he can do so in good faith.

• Affirmed in part, reversed in part, and remanded.

ALTENBERND and SLEET, JJ., Concur.

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SILBERMAN, Judge.

Thomas J. Profetto seeks review of the orders denying his motion for postconvic *685 tion relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all claims with the exception of part of claim thirteen.

In December 2009, Profetto was convicted of attempted first-degree murder and sentenced to thirty-five years in prison with a twenty-year mandatory minimum. At trial, the State presented evidence that Profetto, Jevon Gibson, and Tatijana Dimic formed a plan to rob another friend by ambushing him at a staged break-down of Dimic’s automobile. The plan did not unfold as expected, however, and Profetto and Gibson ended up charging the victim’s vehicle on foot while firing numerous shots at it. Dimic testified against Profetto in exchange for a sentence of three years in prison followed by twelve years of probation. Gibson did not testify at Profetto’s trial, and the trial transcript does not reveal the outcome of Gibson’s case.

In claim thirteen, Profetto asserted that trial counsel was ineffective when he failed to suggest a downward departure sentence and “to object to the unequal and lesser sentence of his .equally culpable co-defendant at sentencing, who was subject to the same sentencing enhancement as Defendant.” Profetto asserted that the trial court was under the erroneous impression that it could not depart downward on this basis. The postconviction court failed to address this portion of the claim.

We note that the trial court would not have been able to impose a sentence less than the mandatory minimum under the 10-20-Life statute. See State v. Bray, 174 So.3d 488, 489 (Fla. 4th DCA 2015). However, the court could have departed downward from the thirty-five-year sentence based on a codefendant’s lesser sentence if the two were equally culpable and there was not a great disparity in their criminal records. See Sanders v. State, 510 So.2d 296, 298 (Fla.1987); Marchetta v. State, 766 So.2d 1126, 1126 (Fla. 2d DCA 2000).

Profetto’s claim is facially insufficient insofar as it does not offer any specifics regarding the codefendant’s charge, sentence, or prior criminal history. That said, Profetto is entitled to an opportunity to amend this facially insufficient claim. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Accordingly, we reverse the denial of this claim with directions for the court to afford Profetto leave to amend if he can do so in good faith.

• Affirmed in part, reversed in part, and remanded.

ALTENBERND and SLEET, JJ., Concur.

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198 So. 3d 684, 2015 Fla. App. LEXIS 19426, 2015 WL 9487580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/profetto-v-state-fladistctapp-2015.

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