State v. Stephenson

973 So. 2d 1259, 2008 WL 397413
CourtDistrict Court of Appeal of Florida
DecidedFebruary 11, 2008
Docket5D07-921
StatusPublished
Cited by27 cases

This text of 973 So. 2d 1259 (State v. Stephenson) 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. Stephenson, 973 So. 2d 1259, 2008 WL 397413 (Fla. Ct. App. 2008).

Opinion

973 So.2d 1259 (2008)

STATE of Florida, Appellant,
v.
Malik Garcia STEPHENSON; Appellee.

No. 5D07-921.

District Court of Appeal of Florida, Fifth District.

February 11, 2008.

*1261 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.

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 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 leaving the scene of an accident with injury), he had not been arrested or charged with any offenses other than those then before the court for sentencing. While true, the State observed that Mr. Stephenson had only been out of prison for fourteen months when the current charges arose. Mr. Stephenson and his family and friends testified that since his release from prison, he had purchased a home, gotten married, had a baby, and maintained a full-time job. Mr. Stephenson was also responsible for supporting his wife, child, step-child and disabled mother.

Over the State's objection, the trial court imposed a downward departure sentence, reasoning:

The court is impressed that Mr. Stephenson has kept his nose clean for the past fourteen months and has demonstrated remorse and is supporting his family, but that doesn't take away from the fact that the offense that he committed put the community in jeopardy.
*1262 Anytime someone runs from a police officer in such a reckless manner, there is any number of bad things that can happen. That's why it's a second degree felony because the State recognizes that it puts innocent people at risk. Unfortunately, we hear all too often about innocent people who are killed in crashes that occur during high speed chases.
So much so that the police have had to undergo some real serious soul searching about who they chase and don't chase and Mr. Stephenson has to pay a price for the very, very poor judgment that he exercised on January 18, 2006.
The court does find that he qualifies as a habitual felony offender and I am going to enter the order finding that he qualifies as a habitual felony offender. I am going to find that he does not—it is not necessary to protect the public in this case to sentence him as a HFO.
I'm instead going to downward depart under 921.0026. I believe that the court can consider not only the enumerated mitigating factors, but inherent in the language is anything else that the court deems to be significant.
The fact that Mr. Stephenson has had a child since he committed this offense, the fact that he supports not only his child and his wife but his mother are factors that convince the court that Mr. Stephenson should get a downward departure sentence.
I am going to sentence him to one year in the Seminole County Jail and authorize that he be granted work release so that he can continue working and continue providing for his family followed by three years supervised probation with no early termination.

The trial court adjudicated Mr. Stephenson guilty of the charged offenses, and sentenced him to one year in the county jail followed by three years of probation.[3] As reasons for the departure sentence, the trial court noted on the sentencing score-sheet that Mr. Stephenson was remorseful, was supporting a new baby, and had a disabled, dependent mother. This appeal followed.

At the outset, Mr. Stephenson argues that the State failed to properly preserve the issue for appellate review. We disagree. At the sentencing hearing, the State offered evidence of Mr. Stephenson's significant prior criminal history, the aggravated circumstances of this offense and objected to the court's downward departure. While the State could have been more specific in its objection, an issue is preserved for appeal if the articulated concern is sufficiently specific to inform the court of the perceived error. State v. Paulk, 813 So.2d 152, 154 (Fla. 3d DCA 2002) (citing Williams v. State, 414 So.2d 509 (Fla.1982)). We conclude the State satisfied that standard. State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000).

In State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002), this Court recognized the specific limitations placed on a trial court's authority to depart from the Criminal Punishment Code, explaining:

At a minimum, the trial court must impose the lowest permissible sentence calculated according to the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure. See e.g., § 921.002(1)(f) & (3), Fla. Stat. (1999); State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000). The decision to depart from the minimum sentence mandated by the Criminal Punishment Code is a two part process. Banks v. State, *1263 732 So.2d 1065 (Fla.1999); State v. Schillaci, 767 So.2d 598 (Fla. 4th DCA 2000). First, the trial court must decide whether it can depart by determining whether "there is a valid legal ground and adequate factual support for that ground" in the case pending before it. Banks, 732 So.2d at 1067. That decision will be affirmed on appeal if any reason provided by the trial judge is valid and supported by competent substantial evidence. State v. Clay, 780 So.2d 269, 270 (Fla. 5th DCA 2001).

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Cite This Page — Counsel Stack

Bluebook (online)
973 So. 2d 1259, 2008 WL 397413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stephenson-fladistctapp-2008.