State v. Cooper

889 So. 2d 119, 2004 WL 2726043

• Court: District Court of Appeal of Florida
• Decided: November 24, 2004
• Docket: 4D03-2803
• Status: Published

Opinion

889 So.2d 119 (2004)

STATE of Florida, Appellant,
v.
Mark COOPER, Appellee.

No. 4D03-2803.

District Court of Appeal of Florida, Fourth District.

November 24, 2004.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.

Terrence Moons, Jr., Fort Lauderdale, for appellee.

SHAHOOD, J.

We reverse appellant's downward departure sentence, and remand for resentencing within the guidelines.

A mitigating factor which justifies a downward departure from the sentencing guidelines is, "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla. Stat. (2003). To justify departure on this basis, all three elements must be articulated by the trial judge and supported by the record. See State v. Thompson, 844 So.2d 814, 815 (Fla. 5th DCA 2003).

In this case, the trial court articulated these factors as the basis for the departure sentence; however, the record does not support the findings. Although there was some evidence that appellant had shown remorse, there was no evidence to show the manner in which the crime was committed. Moreover, the evidence clearly disputed the finding that this was an isolated event. See generally State v. Deleon, 867 So.2d 636, 637-38 (Fla. 5th DCA 2004) (holding that "where defendant's scoresheet reflected previous felonies and misdemeanors, his conduct could not have been characterized as isolated."). Thus, the trial court should have imposed a guidelines sentence.

REVERSED AND REMANDED.

KLEIN and STEVENSON, JJ., concur.