Annual Business Meeting of the Florida Conference of Circuit Judges, June 25, 2002

Sentencing: Granting Departures on a Wink and a Prayer

Frederick J. Lauten
Circuit Court Judge
Ninth Judicial Circuit
425 North Orange Avenue
Orlando, Florida 32801
(407) 836-2009
E-mail: ctjufl1@ocnjcc.org

INTRODUCTION

For any felony offense, except a capital felony, committed on or after October 1, 1998, a sentencing guidelines score sheet must be prepared in order to calculate the lowest permissible sentence. At a minimum, the trial court must impose the lowest permissible sentence unless the court finds factors or circumstances that reasonably justify mitigation of sentence.

In order to depart downward from the sentencing guidelines, the court must engage in a two-part analysis. First, the court must determine whether it can depart from the guidelines, i.e. whether a valid legal reason and an adequate factual basis exists for departure. Second, the court must decide whether it should depart, i.e. whether departure is the best sentencing option for the defendant in this particular case.

In answering the first question, that is whether the court can depart, the court should examine the sentencing statute and case law for valid legal grounds that support departure. Additionally, the court must receive competent, substantial evidence, which by a preponderance of the evidence, supports the legal reasons for the departure. The court’s decision on this first question is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent, substantial evidence supports the ruling.

In answering the second question, that is, should the court depart, the court must weigh the totality of the circumstances in light of the statutory sentencing scheme to decide if departure is the best sentencing option for the defendant in the particular case pending before the court. The court is vested with significant discretion in answering the second question and will be sustained on review absent an abuse of discretion.

CAN YOU DEPART DOWNWARD?

I. Is there a valid legal ground to depart?

Statutory Reasons to Depart Florida Statute 921.0026 (2)
Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:
- (a) The departure results from a legitimate, uncoerced plea bargain.
- (b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
- (c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.
- (d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.
- (e) The need for payment of restitution to the victim outweighs the need for a prison sentence.
- (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.
- (g) The defendant acted under extreme duress or under the domination of another person.
- (h) Before the identity of the defendant was determined, the victim was substantially compensated.
- (i) The defendant cooperated with the state to resolve the current offense or any other offense.
- (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
- (k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.
- (l) The defendant is to be sentenced as a youthful offender.

(a) The departure results from a legitimate, uncoerced plea bargain.

Ø The state must be a party to the plea bargain in order to use this reason to depart.

State v. Sawyer, 753 So.2d 737 (Fla. 2d DCA 2000)
State v. Laperreri, 710 So.2d 119 (Fla. 2d DCA 1998)
State v. Kennedy, 698 So.2d 349 (Fla. 4th DCA 1997)

Ø Once the state agrees to a downward departure as part of the plea process, the court is free to depart even further than the agreed upon departure reached by the parties.

State v. Aguilar, 775 So.2d 994 (Fla. 3d DCA 2000)
State v. Cure, 760 So.2d 243 (Fla. 3d DCA 2000)
State v. Collins, 482 So.2d 388 (Fla. 5th DCA 1985)

(b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.

Ø Defendant, who was on probation when charged with burglary, grand theft and dealing in stolen property, and who admitted to being a dealer in stolen property, is not a minor participant in crime.

State v. Woodson, 745 So.2d 570 (Fla. 5th DCA 1999)

Ø Defendant who was a “closer” in a telemarketing scheme, not a minor participant.

State v. Silver, 723 So.2d 381 (Fla. 4th DCA 1998)

(c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.

Ø Departure approved for defendant, an 18 year old, suffering from misdiagnosed attention deficit problems, who was emotionally and intellectually immature and her capacity was substantially impaired.

State v. Gilson, 800 So.2d 727 (Fla. 5th DCA 2001)

Ø Although the defendant’s impairment did not reach the level of insanity, he qualified for departure under this mitigating circumstance.

State v. Clark, 745 So.2d 1116 (Fla. 4th DCA 1999)

Ø After July 1, 1997, impairment of capacity due to substance abuse or addition is no longer a proper reason for departure.

State v. Beck, 763 So.2d 506 (Fla. 4th DCA 2000)
State v. Chapman, 805 So.2d 906 (Fla. 2d DCA 2001)

(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.

Ø Statute requires competent evidence that 1.) a defendant requires specialized treatment for a mental disorder; 2.) the disorder is unrelated to substance abuse or addition; 3.) the defendant is amenable to treatment.

State v. Cummings, 748 So.2d 388 (Fla. 5th DCA 2000)

Ø All three elements of this section must be established in order to departure downward.

State v. Falocco, 730 So.2d 765 (Fla. 5th DCA 1999)

Ø The defendant’s statements alone are not sufficient to establish his amenability to treatment.

State v. Bostick, 715 So.2d 298 (Fla. 4th DCA 1998)

Ø A lack of available treatment in prison is not required under the statute, but an amenability to treatment is required.

State v.Gilson, 800 So.2d 727 (Fla. 5th DCA 2001)

State v. Cummings, 748 So.2d 388 (Fla. 5th DCA 2000)

Ø However, one court has questioned whether the defense must demonstrate a requirement for treatment that cannot be provided by the Department of Corrections in order to satisfy this mitigating circumstance.

State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998)

Ø Amenability to treatment means there is a reasonable probability that the defendant will successfully overcome addiction through a treatment program and that the defendant has a sincere desire to do so (pre July 1, 1997, case).

State v. Parker, 733 So.2d 1074 (Fla. 5th DCA 1999)

Ø No evidence in the record that defendant, who had an anger management problem, was amenable to treatment for that condition.

State v. Skidmore, 755 So.2d 647 (Fla. 4th DCA 1999)

Ø Jury rejected defendant’s insanity defense, but court found that defendant suffered from a mental disorder and was amenable to treatment. The downward departure was upheld.

State v. Clark, 745 So.2d 1116 (Fla. 4th DCA 1999)

Ø Non-insulin diabetes and sciatica not reasons to downward departure in absence of evidence that defendant required
specialized treatment.

State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000)

Ø Evidence of a personality disorder and amenability to treatment proper for departure.

State v. Osburne, 717 So.2d 1110 (Fla. 5th DCA 1998)

Ø Intoxication or addiction - for offenses committed after July 1, 1997, substance abuse or addiction, including intoxication at time of offense not a mitigating circumstance and under no circumstances can it be used to justify a departure.

State v. Chapman, 805 So.2d 906 (Fla. 2d DCA 2001)
State v. Fulton, 777 So.2d 1134 (Fla.4th DCA 2001)

Ø For chronic drug addicted defendants, the court may consider drug offender treatment programs under 948.01 (13) or 948.034, which are sentences that are imposed outside of the guidelines.

Jones v. State, 813 So.2d 22 (Fla. 2002)

(e) The need for payment of restitution to the victim outweighs the need for
a prison sentence.

Ø In weighing the need for restitution versus imprisonment, the court must take into account:

1) The nature of victim’s loss
2) The efficacy of restitution
3) The consequences of imprisonment
4) The desires of the victim, but they are not despositive

Banks v. State, 732 So.2d 1065 (Fla. 1999)

Ø Evidence must be presented of victim’s need for restitution.

State v. White, 755 So.2d 830 (Fla. 5th DCA 2000)
State v. Schillaci, 767 So.2d 598 (Fla. 4th DCA 2000)
State v. Santomoso, 764 So.2d 735 (Fla. 2d DCA 2000) State v. Quintanal, 791 So.2d 23 (Fla. 3d DCA 2001)

Ø Court needs non-hearsay evidence of victim’s need for restitution.

State v. Shillaci, 767 So.2d 598 (Fla. 4th DCA 2000)

Ø No evidence of victim’s need for restitution or that defendant had the ability to pay restitution if spared a prison sentence.

State v. Amodeo, 750 So.2d 66 (Fla. 5th DCA 1999)

Ø However, the ability to make restitution payments is usually reserved for consideration at the time of enforcement of the court order.

Ibrahim v. State, 687 So.2d 914 (Fla. 4th DCA 1997)

Ø Costs of prosecution and costs of investigation may not serve as a basis for departure under the restitution mitigator.

State v. Tyrell, 807 So.2d 122 (Fla. 5th DCA 2002)

(f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.

Ø Even though consent is not a defense, the willing participant of a 17 year old female victim was a factor supporting a downward departure.

Ø The trial court must consider the victim’s age and maturity and the totality of the facts and circumstance of the relationship between the defendant and the victim.

Ø The younger and less mature the victim, the less likelihood a finding of consent or willing participation will be sustained.

State v. Rife, 789 So.2d 288 (Fla. 2001)

Ø Former wife tried to reconcile with defendant and he raped her; victim not initiator or willing participant.

State v. Morales, 718 So.2d 272 (Fla. 5th DCA 1998)

Ø The jury rejected defendant’s self-defense claim, but the court departed downward finding the victim was the aggressor or provoker of the incident. Conduct that is legally insufficient to excuse the defendant’s actions may nevertheless be legally sufficient to warrant a downward departure, so long as the court does not make factual findings inconsistent with the jury’s verdict.

Hines v. State, 27 Fla. L. Weekly D1252 (Fla. 2d DCA May 29, 2002)

(g) The defendant acted under extreme duress or under the domination of another person.

Ø This statutory language is identical to the statutory mitigating circumstance listed in the death penalty sentencing statute. Section 921.141(6)(c), Florida Statutes (2001)

(h) Before the identity of the defendant was determined, the victim was substantially compensated.

(i) The defendant cooperated with the state to resolve the current offense or any other offense.

Ø This mitigator requires more than a guilty plea and a confession to authorities after arrest.

State v. Bleckinger, 746 So.2d 553 (Fla. 5th DCA 1999)

Ø Simply pleading guilty doesn’t support the mitigator.

State v. Tyrell, 807 So.2d 122 (Fla. 5th DCA 2002
State v. McGriff, 698 So.2d 331 (Fla. 2d DCA 1997)

Ø Trial court met privately with law enforcement officer, who stated that the defendant provided substantial assistance. No competent, substantial record evidence supported the departure in this case.

State v. Henderson, 766 So.2d 389 (Fla. 2d DCA 2000)

(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

Ø In order for this section to support a downward departure, all three elements must be established by substantial, competent evidence.

State v. Butler, 787 So.2d 47 (Fla. 2d DCA 2001)
State v. Baksh, 758 So.2d 1222 (Fla. 4th DCA 2000)
State v. Bleckinger, 746 So.2d 553 (Fla. 5th DCA 1999)
State v. Falocco, 730 So.2d 765 (Fla. 5th DCA 1999)

Ø Where defendant denies committing the crime but at sentencing states he is sorry for any wrongdoing he may have committed, court errs in finding defendant is remorseful. Defendant did not express any regret for his actual conduct, nor did he acknowledge that he committed the crime.

State v. Knox, 753 So.2d 681 (Fla. 2d DCA 2000
State v. Whiting, 711 So.2d 1212 (Fla. 2d DCA 1998)

Ø Defendant stopped on bicycle, consented to search and police found less than 0.1 grams of cocaine. Departure reversed because no record evidence that crime was an isolated incident nor that defendant has shown remorse.

State v. Butler, 787 So.2d 47 (Fla. 2d DCA 2001)

Ø Defendant smashed windshield of victim’s truck, slashed victim with razor knife and warned victim he better not tell anyone of earlier crime victim had witnessed. At sentencing, defendant denied what he was accused of and regretted that victim was injured. Departure reversed. “The fact that Chestnut is sorry that Hicks was injured by another is sympathy and not remorse.”

State v. Chestnut, 718 So.2d 312 (Fla. 5th DCA 1998)

Ø Simply stating that you are sorry for your offense is not remorse.

State v. Arvinger, 751 So.2d 74 (Fla. 5th DCA 1999)

Ø Unsophisticated is generally defined as being the opposite of sophisticated which is defined as, “having acquired worldly knowledge or refinement; lacking natural simplicity or naiveté.” Court upheld a downward departure involving the purchase of cannabis after discussing whether a purchase of drugs can ever be unsophisticated. The court construed the term, “unsophisticated” liberally and applied the rule of lenity.

State v. Fleming, 751 So.2d 620 (Fla. 4th DCA 1999)

Ø Defendant with no prior criminal history committed three sex acts with a minor over a short period of time and defendant showed remorse. Departure was upheld on unsophisticated, isolated and remorseful grounds.

State v. Merritt, 714 So.2d 1153 (Fla. 5th DCA 1998)

DUI Cases

DUI cases and departure based upon the offense being an isolated incident, committed in an unsophisticated manner, for which the defendant has shown remorse.

Ø DUI cannot qualify for the departure since it cannot be committed in an unsophisticated manner. Given the state’s strong public policy against DUI this departure reason is not available for DUI offenses.

State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), approved in part, 762 So.2d 507 (Fla. 2000)

Ø DUI offenses qualify for this mitigator since the legislature did not preclude mitigation for the crime of DUI and it was an isolated incident, committed in an unsophisticated manner for which the defendant has shown remorse.

1) Court must strictly construe penal statutes.
2) The legislature precluded intoxication itself, as a mitigator. Therefore, it was cognizant of the state’s strong public policy against drunk driving yet still did not exempt DUI crimes from section 921.0026 (2) (j).
State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001)

Ø First District Court certifies conflict with Fourth District and holds that DUI is not precluded from 921.0026 (2) (j) consideration.

Leveritt v. State, 27 Fla. L. Weekly D1122 (Fla. 1st DCA May 7, 2002)

(k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.

Ø The First District Court of Appeals and perhaps the Fourth District have found that age alone is a sufficient reason to depart.

Ø The Second, Third and Fifth Districts have found that age itself is not a sufficient justification to depart downward.

State v. Whiddon, 554 So.2d 651 (Fla. 1st DCA 1989)

Ø Age and lack of prior record can be factors used to depart when there are other extraordinary reasons such as the help of relatives, friends, rehabilitation and participation in a treatment program.

State v. Williams, 637 So.2d 45 (Fla. 2d DCA 1994).

Ø Emotional immaturity coupled with a chronological young age is a sufficient basis to allow a sentencing court to depart.

State v. Gilson, 800 So.2d 727 (Fla. 5th DCA 2001)

Ø Youthful age is not a reason to depart.

State v. Scanlon, 721 So.2d 392 (Fla. 2d DCA 1998)

(l) The defendant is to be sentenced as a youthful offender.

Ø Refer to Florida Statute Chapter 958

Non-Statutory Reasons to Depart

Ø Statutory reasons are not exclusive.

State v. Amodeo, 750 So.2d 664 (Fla. 5th DCA 1999)

Ø In considering a downward departure for non-statutory reasons, the trial court must analyze the nature of the reasons given, in light of the stated legislative sentencing policy. A downward departure from the sentencing guidelines is discouraged unless there are circumstances that reasonably justify the departure. The statutory reasons for departure focus on the nature of the crime, conduct of the defendant or mental capacity, condition or attitude of the defendant. But, non-statutory reasons for downward departure require the court to consider the nature of the reasons given in light of the stated legislative policy for sentencing, which is to punish, not to rehabilitate. The legislative sentencing policy is to insure that violent criminals are incarcerated. Finally, the court emphasized that the legislature is serious about sentencing.

State v. Chestnut, 718 So.2d 312 (Fla. 5th DCA 1998)

Ø The following non-statutory reasons for departure were disapproved of by the appellate courts:

Having strong family support.
Defendant is a young man with excellent prospects for rehabilitation.
Prison term will have long-term consequences for the defendant.
- State v. Chestnut, 718 So.2d 312 (Fla. 5th DCA 1998)
Defendant has done good works in the community.
- State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002)
Defendant’s child died in a DUI crash. The facts that the child’s mother was injured and surviving child and mother needed financial support are not reasons for departure.
- State v. Rafferty, 799 So.2d 243 (Fla. 2d DCA 2001)
Lack of prior record (not a reason to depart because it is already factored with the guidelines).
- Sanders v. State, 510 So.2d 296 (Fla. 1987)
- State v. Sachs, 526 So.2d 48 (Fla. 1988)
Failure to keep one’s ducks in a row.
- State v. Sawyer, 753 So.2d 737 (Fla.2d DCA 2000)
Defendant has suffered enough.

State v. Lacey, 553 So.2d 778 (Fla. 4th DCA 1989)

Court’s opinion that offense doesn’t require a lengthy prison term.
- State v. McGriff, 698 So.2d 331 (Fla. 2d DCA 1997)
Pregnancy of defendant’s girlfriend.
- State v. Licea, 707 So.2d 1115 (Fla. 2d DCA 1998)
Desire of victim not to prosecute.
- State v. Skidmore, 755 So.2d 647 (Fla. 4th DCA 1999)
State probably couldn’t prove the case yet defendant pled.
- State v. Perez, 802 So.2d 1167 (Fla. 3d DCA 2001)
Time served in another case.
- State v. Stanton, 781 So.2d 1129 (Fla. 3d DCA 2001)
A word about habitual felony offender (HFO) sentencing is in order. Section 775.084 (4)(h), Florida Statutes (2001) provides that sentences imposed under the HFO stature are not subject to the sentencing guideline provisions in section 921.001. However, the Supreme Court held that once a trial court decides that an offender qualifies for HFO status, if the court imposes a sentence that is more lenient than the sentencing guidelines, it must state appropriate reasons for a downward departure. By imposing a sentence more lenient than the guidelines, the court has necessarily determined that a habitual offender sentence is not appropriate and it must apply guideline principles.
- State v. Rinkins, 646 So.2d 727 (Fla. 1994);
- Welling v. State, 748 So.2d 314 (Fla. 4th DCA 1999)

Victim’s desire not to prosecute?

Is the victim’s desire not to prosecute a valid non-statutory reason for downward departure by the sentencing court?

Victim’s wishes are relevant but not binding since it is the judge, not the victim, who must weigh society’s competing needs.
- State v. Kasten, 775 So.2d 992 (Fla. 3d DCA 2000)
Victim’s desire for departure is not a valid reason for departure.
- State v. Ussery, 543 So.2d 457 (Fla. 5th DCA 1989)
- State v. Amoro, 762 So.2d 998 (Fla. 5th DCA 2000)
An open issue, but if the victim asks for leniency due to addiction, the court may not depart.
- State v. McLaren, 763 So.2d 1171 (Fla. 4th DCA 2000)

II. Is there an adequate factual basis to depart?

Ø Not only must valid legal grounds for departure exist, a factual basis must be proved by the defendant by a preponderance of the evidence.

Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999)

Ø Facts supporting departure must be proved by the preponderance of evidence.

921.002(1)(f), Florida Statutes (2001)

Ø Preponderance of evidence standard is a standard of proof for the trial court to apply, not a standard of review for appellate court to impose.

Banks v. State, 732 So.2d 1065 (Fla. 1999)

Ø Defense counsel’s unsworn statements cannot serve as evidence to substantiate a downward departure.

State v. Tyrell, 807 So.2d 122 (Fla. 5th DCA 2002)

Ø Defendant has the burden of proof.

State v. Silver, 723 So.2d 381 (Fla. 4th DCA 1998)
- In State v. Gosier, 737 So.2d 1121 (Fla. 4th DCA 1999), the Fourth District Court in footnote 1 when addressing the
  evidence in the record for departure stated:
  - “Although defense counsel made a number of statements concerning the defendant, the defendant’s life, the crime and supposed remorse, those statements do not constitute evidence. See State v. Warner, 721 So.2d 767, 769 (Fla. 4th DCA 1998) (“We agree with the state that a proffer is not evidence.”); Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015. 1016-17 (Fla. 4th DCA 1982) (“[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”).

SHOULD YOU DEPART DOWNWARD?

Is departure the best option?

Ø The second step in the analysis requires the court to determine whether departure is the best sentencing option for the defendant.

1) The court must weigh the totality of circumstances including aggregating and mitigating circumstances.
2) This decision is a judgment call within the sole discretion of the court and will be sustained on review absent an abuse of discretion.
3) Discretion is abused only where no reasonable person would agree with the trial court’s decision.
Banks v. State, 732 So.2d 1065 (Fla. 1999)

APPELLATE REVIEW

I. The standard of review on the question, “Can you depart”?

Ø The decision of the trial court whether valid legal grounds and adequate factual support exists to permit a downward departure will be affirmed on appeal if any reason given is valid and supported by competent, substantial evidence.

(a) This issue is a mixed question of law and fact.
(b) Competent, substantial evidence is tantamount to legally sufficient evidence.
Banks v. State, 732 So.2d 1065, 1068 (Fla. 1999)

II. The standard of review on the question, “Should you depart”?

Ø This part of the decision is within the sole discretion of the trial court and will be sustained on review absent an abuse of discretion.

Banks v. State, 732 So.2d 1065, 1068 (Fla. 1999)

III. Failure to file written reasons for departure.

Ø Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.

Section 921.002(31), Florida Statutes (2001)

Ø The written reasons must be filed by the sentencing court within seven days after the date of sentencing.

(a) A written transcription of orally stated reasons is sufficient if filed within seven days after sentencing.
(b) Or the sentencing judge may also list the written reasons for departure in space provided in the Criminal Punishment Code worksheet.
- Rule 3.704(d)(2) Florida Rules of Criminal Procedure

Ø Failure to file written reasons for downward departure is not reversible error where valid reasons for departure exist and were stated at the time of sentencing.

Pease v. State, 712 So.2d 374 (Fla. 1997)

IV. Preserving sentencing error for appellate review

Ø The state must object to the trial court’s downward departure in order to preserve the issue for appellate review, or must bring the matter to the court’s attention by motion pursuant to Fla. R. Crim. Pro. 3.800 (b).

State v. Cummings, 748 So.2d 388 (Fla. 5th DCA 2000)
State v. Hamner, 27 Fla. L. Westly D1167 (Fla. 5th DCA May 17, 2002)

Ø No magic words are needed to make a proper objection.

State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002)

Ø A sentence may be appealed on the basis that it departs from the Criminal Punishment Code only if the sentence is below the lowest permissible sentence or as enumerated in Statute 924.06(1).

Section 921.002(1)(h), Florida Statutes (2001)

V. If the sentence is reversed.

Ø If no plea agreement, case remanded for imposition of new sentence within the sentencing guidelines.

State v. Knox, 753 So.2d 681 (Fla. 2d DCA 2000)

Ø If a specific plea agreement was involved that can no longer be honored, defendant must be given an opportunity to withdraw plea and go to trial, or be sentenced under the guidelines.

State v. Licia, 707 So.2d 1155 (Fla. 2d DCA 1998)
State v. Santomaso, 764 So.2d 735 (Fla. 5th DCA 2000)
State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998)

Ø If the departure is reversed for the failure of the defendant to present competent, substantial evidence as to departure, the appellate court might remand for a further evidentiary hearing.

State v. Bosteik, 715 So.2d 298 (Fla. 1998)

Ninth Judicial Circuit Court of Florida