State v. Perez-Diaz

189 So. 3d 896, 2016 Fla. App. LEXIS 4022, 2016 WL 1039100
CourtDistrict Court of Appeal of Florida
DecidedMarch 16, 2016
Docket3D14-2885
StatusPublished
Cited by2 cases

This text of 189 So. 3d 896 (State v. Perez-Diaz) 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.

Bluebook
State v. Perez-Diaz, 189 So. 3d 896, 2016 Fla. App. LEXIS 4022, 2016 WL 1039100 (Fla. Ct. App. 2016).

Opinions

ROTHENBERG, J.

The State of Florida appeals the downward ■ departure' sentence imposed by the trial court in its effort to achieve sentencing parity between two' co-defendants. Because the record reflects that these two defendants were not similarly situated and not equally culpable, we conclude that there is no legal basis'to sustain the downward departure sentence. Accordingly, we reverse the sentence and remand for a resentencing of the defendant, Yanker Orlando Perez-Diaz.

The operative facts are as follows. Perez-Diaz, Mailin Robaina, and Mailin’s brother, Jorge Robaina, were charged with various offenses stemming from events that occurred during a house party they had attended. Because the downward departure sentence was to achieve sentencing parity between the defendant and his co-defendant, Mailin, we confine our discussion to these two défendants.

Had the defendants proceeded to trial, the State was prepared to present the following evidence. While at a party, Perez-Diaz discovered that his wallet was missing. Believing that someone at the party had stolen it, Perez-Diaz armed himself with a machete, threatened to slice everyone up, ordered everyone into the house, yelled at everyone to get down onto the floor and on their knees,' and demanded that they empty their pockets and place their valuables on a table. As the party-goers emptied their pockets and Mailin and Perez-Diaz collected the victims’ wallets, watches, and cell phones, Mailin and Perez-Diaz yelled at the victims, and Perez-Diaz. threatened the victims with the machete. In addition to threatening the victims with the machete, • Perez-Diaz punched a female captive in the face and [898]*898struck another captive with the machete. The victims and witnesses testified that although Mailin helped collect the victims’ property, Perez-Diaz was the one in control. Perez-Diaz and Mailin then fled the scene in a car driven by Mailin’s brother, and thereafter, Perez-Diaz attempted to make fraudulent purchases with the stolen credit cards. Perez-Diaz was twenty-three years old when he committed these crimes. All of the victims were teenagers under the age of, eighteen.

Perez-Diaz, Mailin, and Mailin’s brother were all arrested and charged with committing various ■ crimes. Perez-Diaz and Mailin were charged with four .counts of armed robbery, one count of aggravated battery with a deadly weapon, one count of aggravated assault with a deadly weapon, and one count of grand theft. Perez-Diaz was also charged with one count of fraudulent use of a stolen credit card.

On May 20,, 2014, Mailin entered into a negotiated plea with the State wherein she agreed to plead guilty to the charges, provide a truthful .statement regarding the events on the night of the robberies and related crimes, and “cooperate” with the State. In exchange for Mailin’s guilty plea and cooperation, she was sentenced to two years of community control followed by ten years of probation.

Thereafter, Perez-Diaz also pled guilty to the charges against him. This plea was an open, non-negotiated plea. According to the State, after scoring the charged offenses and Perez-Diaz’s extensive prior criminal record, the lowest' permissible sentence which could be imposed under the Criminal Punishment Code is 168.3 months which is approximately fourteen years in prison.1 Prior to sentencing, the State announced that it was seeking a twenty-year sentence of incarceration followed by five years of probation, and Perez-Diaz filed a motion seeking a downward departure from the sentencing guidelines.

After hearing from four of the victims, who confirmed the facts previously articulated in this opinion; considering the State’s request for a twenty-year prison sentence followed by five years of probation; and considering Perez-Diaz’s motion for a downward departure from the sentencing guidelines, the trial -court granted Perez-Diaz’s motion and imposed a downward departure sentence of six years in prison followed by six years of probation.

Perez-Diaz offered two grounds in support of his motion- for a downward departure sentence: (1) the offenses were committed in an unsophisticated manner and this was an isolated incident for which he has shown remorse, which is a statutory mitigating factor pursuant to section 921.0026(2)0, Florida Statutes (2013); and (2) Perez-Diaz “should be sentenced proportionately to Mailin Robaina, an equally or more culpable co-defendant,” a non-statutory mitigating factor. The trial court, concluded that the record did not support a downward departure based on the statutory mitigating factor set forth in section 921.0026(2)(j), but imposed a downward departure sentence based on a modified version of Perez-Diaz’s second ground for a departure sentence. Because the trial court did not depart from the sentencing guidelines on the first ground, and the record reflects that the evidence does not support a downward departure on that ground, we confine our analysis to the modified second ground relied on by the trial court.

ANALYSIS

Section 921.0026(2), of the Florida Statutes (2013), sets forth a non-exclusive [899]*899list of mitigating circumstances for the. imposition of a downward departure sentence from the sentencing guidelines. .Because the statutory list of mitigating circumstances is expressly non-exhaustive, Florida courts have held that a basis for a 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, 533 (Fla. 3d DCA 2014); State v. Bowman, 123 So.3d 107, 109 (Fla. 1st DCA 2013); State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008).

Perez-Diaz sought a downward departure sentence based on the recognized non-statutory ground that a reduction of a defendant’s sentence is proper in order , to provide parity with the sentence of a co-defendant who was at least, if not more, culpable than the defendant. See Sanders v. State, 510 So.2d 296, 298 (Fla.1987); State v. Fernandez, 927 So.2d 939, 941 (Fla. 3d DCA 2006). Perez-Diaz’s argument was based on the false premise that because Mailin was an active participant in the robberies and he and Mailin were co-defendants, and thus both principles to the crimes committed at the party, they were equally culpable. However, culpability for sentencing purposes is not determined solely based on a review of the charging document. As the Florida Supreme Court stated in Sanders, the validity of a departure sentence based on equal culpability must be decided on the facts and circumstances of the case. Sanders, 510 So.2d at 298.

A review of the record in this case reflects that Perez-Diaz and Mailin were not equally culpable ■ and were not similarly situated. ■ The victims testified that it was Perez-Diaz, not Mailin, who threatened them with a machete, ordered them into the house,' and screamed at them to get onto their knees while swinging.the machete, and qrdered them to empty their pockets and place their wallets, watches, and cell phones on the table. Perez-Diaz not only threatened and terrorized these teenagers, he punched one of the girls in the face with his fist and hit at least one of the other minors with the machete. Although Mailin helped collect the victims’ valuables^ it is undisputed that she was unarmed and did not personally strike anyone.

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Related

State v. Gomez
247 So. 3d 592 (District Court of Appeal of Florida, 2018)
State v. Perez-Diaz
District Court of Appeal of Florida, 2017

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Bluebook (online)
189 So. 3d 896, 2016 Fla. App. LEXIS 4022, 2016 WL 1039100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perez-diaz-fladistctapp-2016.