Opinion
No. 2D09-3182.
June 23, 2010.
Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.
Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
Nathaniel B. Kidder, St. Petersburg, for Appellee.
Chance Marshall Isom pleaded no contest to a third-degree felony and two misdemeanors. Mr. Isom's scoresheet reflected a minimum permissible sentence of 45.75 months' prison. Although the State objected, the trial court imposed a down-ward departure sentence on the felony of four years' probation with two of those years to be served in prison as a condition of probation. The trial court stated that the age of Mr. Isom's prior convictions justified a departure from the minimum permissible sentence. The State argues, and Mr. Isom concedes, that this is not an appropriate basis for a downward departure. We agree.
Section 921.0026(1), Florida Statutes (2008), provides:
A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).
Subsection (2) does not list the age of prior convictions as a potential mitigator. And the fact that section 921.0024 requires scoring of all prior convictions indicates that the age of prior convictions is inconsequential in sentencing and inappropriate to support a downward departure sentence.
The trial court also erred in ordering that two years of the four-year probationary term were to be served in prison. Section 948.03(2), Florida Statutes (2008), states that "if the court . . . imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days." See also Stephens v. State, 14 So.3d 254 (Fla. 4th DCA 2009) (finding similar error in an order imposing 51.45 months' prison as a condition of a fifteen-year term of probation).
For these reasons, we reverse Mr. Isom's sentence on the third-degree felony and remand for further proceedings. If he chooses, Mr. Isom may withdraw his plea on remand.
Reversed and remanded.
DAVIS and CRENSHAW, JJ., Concur.