Opinion
No. 2D19-4257
01-20-2023
Robert Thomas BEASLEY, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
Howard L. Dimmig, II, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant/Cross-Appellee. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant.
Howard L. Dimmig, II, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant.
SILBERMAN, Judge.
In a case arising from the laundering of alligator eggs, Robert Thomas Beasley appeals his judgment and sentences for conspiracy to commit racketeering in violation of section 895.03(4), Florida Statutes (2016) (count one), a first-degree felony, and two counts of intentionally possessing or capturing alligators or alligator eggs in violation of section 379.409, Florida Statutes (2016) (counts two and seven), a third-degree felony. The jury found Beasley not guilty of counts three through six that also alleged violations of section 379.409. Beasley contends that the trial court erred (1) by denying his motion for judgment of acquittal on the conspiracy charge, (2) in instructing the jury on section 379.409, (3) by denying his motion for judgment of acquittal on the section 379.409 violations because section 379.3751 preempts section 379.409, and (4) by rejecting his argument that section 379.409 is unconstitutional as an improper delegation of legislative authority to define crimes. Because Beasley has not shown reversible error, we affirm his convictions. On cross-appeal, the State contends that the trial court erred in imposing a downward departure sentence because the evidence refuted that Beasley was a relatively minor participant. Because the record contains competent, substantial evidence to support the trial court's findings and the trial court did not abuse its discretion in sentencing Beasley, we affirm the downward departure sentence.
See also § 895.02(5), (7), and (8) (defining "[e]nterprise," "[p]attern of racketing activity," and "[r]acketeering activity," respectively).
I. Factual background
This case arose from an undercover operation conducted by the Florida Fish and Wildlife Conservation Commission (the FWC). The FWC operates an alligator management program. Statutory law and administrative code rules, which the FWC promulgates, promote alligator conservation and govern the collection and sale of alligator eggs and alligators in Florida. An FWC undercover officer (the Officer) set up Sunshine Alligator Farms (SAF), a licensed alligator egg processing facility. The undercover operation's purpose was to address the concern that alligator eggs were being laundered through alligator farms.
Robert Albritton (Albritton) had a license and a permit to collect alligator eggs on certain public and private lands. He made an agreement with a large alligator farm in Louisiana that provides alligator hides for the manufacture of luxury goods in Europe. Albritton represented that he would provide the Louisiana farm with 10,000 alligator hatchlings in 2016. If Albritton delivered that amount, the Louisiana farm would open an alligator meat processing facility in Arcadia, Florida, that Albritton would manage. The Louisiana farm paid Albritton a salary of $80,000. Albritton hired Beasley, and the Louisiana farm paid Beasley $15 per hour.
Albritton made an agreement with the Officer to teach him the alligator business and to pay $5,000 in exchange for the use of SAF to store eggs and raise hatchlings for the 2016 season. Albritton was to apply for permits to collect eggs and handle all paperwork.
The State alleged that the members of the conspiracy were Albritton, Beasley, Carl Wayne Pickle, Jr., David Wentworth Nellis, Cory Wilcox, and Robin Albritton. The alleged predicate acts included theft, grand theft, forgery, dealing in stolen property, and sale or receipt of stolen goods. The State presented evidence to show that Albritton, along with Beasley, Pickle, and Nellis, illegally harvested alligator eggs by violating Florida permitting and licensing requirements and worked to launder illegally collected eggs through the Seminole Tribe of Florida (the Seminole Tribe). Albritton entered into a plea deal and was sentenced to three years in prison. Pickle, a co-defendant, went to trial with Beasley and was found guilty of the conspiracy and four counts of illegal possession or capture of alligators or eggs. Pickle was sentenced to a downward departure sentence, but his conspiracy conviction was reversed on appeal, as discussed below. See Pickle v. State , 328 So. 3d 1101 (Fla. 2d DCA 2021). The trial court also imposed a downward departure sentence on Beasley, consisting of a concurrent eleven months and twenty-nine days in jail on all counts, followed by ten years of probation on count one.
II. Sufficiency of evidence on conspiracy charge
Beasley contends that the evidence was insufficient to support his conviction for conspiracy to commit racketeering. Beasley is correct that theft of alligator eggs is not a proper predicate offense. See id. at 1106. However, the State presented sufficient evidence that Beasley agreed to participate in the affairs of the criminal enterprise with knowledge and intent that others would carry out the racketeering activity, such as predicate acts of forgery by Albritton.
To prove conspiracy to commit racketeering, the State must establish "that either (1) the defendant knew of the overall objectives of the criminal enterprise and agreed to further its purpose or (2) the defendant personally committed at least two predicate acts ." Id. at 1105 (quoting Morgan v. State , 117 So. 3d 79, 82 (Fla. 2d DCA 2013) ). "[T]he RICO conspiracy statute proscribes a defendant's agreement to participate in the conduct of the affairs of an enterprise, not a defendant's agreement to commit predicate acts." State v. Reyan , 145 So. 3d 133, 140 n.7 (Fla. 3d DCA 2014). "A defendant's agreement may be inferred from his conduct." de la Osa v. State , 158 So. 3d 712, 731 (Fla. 4th DCA 2015). In a conspiracy to commit racketeering, "the ’crime’ is premised not upon the commission of the predicate acts of racketeering, or even an agreement to commit predicate acts, but upon an agreement to participate in the affairs of the criminal enterprise through a pattern of racketeering activity." Reyan , 145 So. 3d at 139.
Beasley is correct that the predicate acts of theft cannot support his conviction for conspiracy to commit racketeering. Taking alligator eggs from their nests is not theft because neither private property owners nor the State own alligator eggs while in their nests. Pickle , 328 So. 3d at 1105-06. "The eggs cannot constitute the property of another under the theft statute, unlawfully taking them was not theft, and the violations could not serve as predicate acts comprising a pattern of racketeering activity." Id. at 1106.
Although illegally harvesting alligator eggs is a crime under section 379.409(1), see § 379.401(4)(a)8 and (4)(b), the conspiracy statute did not list it as a predicate act when the egg collections at issue here occurred in 2016, see § 895.02(8). We note that in 2021 the legislature amended section 895.02(8) to include as racketeering activity violations of "Chapter 379, relating to the illegal sale, purchase, collection, harvest, capture, or possession of wild animal life, freshwater aquatic life, or marine life, and related crimes"; and "violation of Title 68, Florida Administrative Code, relating to the illegal sale, purchase, collection, harvest, capture, or possession of wild animal life, freshwater aquatic life, or marine life, and related crimes." § 895.02(8)(a)3 and (c), Fla. Stat. (2021) ; see also Ch. 2021-55, § 1, Laws of Fla. Thus, a violation of section 379.409 was not a predicate act in 2016 when the events at issue occurred.
The State asserts that the predicate acts of forgery committed by Albritton support Beasley's conspiracy conviction. The jury entered a general verdict and the State argued in its closing as follows:
Or even if you don't find that we've proven up the individual predicate for Mr. Beasley or Mr. Pickle, and there's not at least two, as long as they –– knowledge and intent that other members of the conspiracy engaged in at least two incidents of racketeering as alleged in the information. If they had knowledge that these other members of the conspiracy are engaging in predicate incidents, that's sufficient. They have to have knowledge that they engaged in two predicate incidents.
As part of the conspiracy jury instructions, the jury was instructed as follows:
What the evidence in the case must show beyond a reasonable doubt before you may find the defendant guilty of conspiring to violate the RICO Act is:
(1) Two or more persons in some way or manner came to a mutual understanding
to try to accomplish a common and unlawful plan, namely to engage in a pattern of racketeering activity as charged in the information; and
(2) The defendant knowingly and willfully became a member of such conspiracy; and
(3) At the time the defendants joined such conspiracy, he did so with the specific intent either to personally engage in at least two incidents of racketeering as alleged in the information, or he specifically intended to otherwise participate in the affairs of the enterprise, with the knowledge and intent that other members of the conspiracy would engage in at least two incidents of racketeering as alleged in the information as part of a pattern of racketeering activity.
See also Fla. Std. Jury Instr. (Crim.) 26.8.
The State provided evidence from which the jury could find that Beasley knew of and agreed to the overall objectives of the criminal enterprise. The evidence showed that Beasley had agreed to participate in the criminal enterprise with knowledge and intent that others would engage in at least two incidents of racketeering, i.e., the forgeries, as part of a pattern of racketeering activity. The State asserts that the objective of the criminal enterprise was to obtain alligator eggs and hatchlings in violation of Florida law for the purpose of (1) selling a large number of alligator hatchlings to the Louisiana buyer and (2) convincing the buyer to build an alligator processing facility in Arcadia, Florida. We note that at the time of Beasley's arrest, he was employed by that processing facility in Arcadia.
The scheme involved increasing egg collection numbers by laundering eggs that had been illegally poached from various properties and by falsifying documents which represented that the eggs came from Seminole tribal lands. The scheme also included increasing egg collections by collecting eggs and hatchlings in excess of permits or without permits, falsely reporting or not reporting details of egg collections to the FWC, and transporting eggs without documentation or with fraudulent documentation.
For instance, on July 18, 2016, at a property known as 72 Partners, Beasley, Albritton, and the Officer collected 42 eggs, but the permit was not effective until two days later, July 20. The Officer did not receive a transfer document for the eggs until later, and on July 22, Albritton and Beasley made calls to the FWC dispatch representing that the collection of 42 eggs at 72 Partners occurred on July 22. Beasley knew the report was false because he was present for the egg collection on July 18.
Beasley kept track of the egg collection numbers and the sources of eggs in a notebook that was found in his truck the day he was arrested. The notebook had Beasley's name, Tommy, written on it, and the notebook contained a chart of numbers labeled "egg collection" which corresponded to the 2016 egg collections and related transfer forms seen at SAF. One entry listed 184 eggs under "Personal," a number that corresponded to a transfer form for eggs from the Seminole Tribe photographed at SAF around July 20.
The evidence showed Beasley's awareness of the forged transfer documents because he was transporting the eggs with the falsified transfer documents. For example, on July 26, the men were collecting eggs at a property known as Shell Creek, but one box of 100 eggs on the airboat was not from Shell Creek; rather, it came from Beasley's property, called Prairie Creek. Beasley was present when they were unloading the eggs and Albritton told the Officer that the eggs were from Beasley's property. The eggs were transported to SAF with a transfer form stating that they had come from the Seminole Tribe and placed in an area where undocumented eggs were stored. The log also identifies the eggs as coming from the Seminole Tribe. This incident, along with Beasley's personal notebook, shows that he knew that Albritton would submit false documentation for the eggs Beasley collected.
On July 11-12, 2016, Beasley stayed at Cecil Webb Wildlife Management Area (Cecil Webb) after Nellis, who was a supervising biologist, and the Officer left. On July 12, Beasley told the Officer that he had collected 108 eggs after the biologist and the Officer left and that he had collected 26 eggs from "a friend's property." Beasley told the Officer "that he had called Robert Albritton and advised him what he was doing[;] Robert told him that he could but just don't get caught." In another instance on August 2, 2016, Albritton gave the eggs he had collected at Cecil Webb to Beasley, and Beasley took them. Albritton told Beasley that "he didn't want to get caught on the road with them." This further shows that Beasley was aware of the illegal activity by the enterprise and that he transported the eggs.
Based on the foregoing, the jury could infer that Beasley was aware of the scope of the enterprise and that he intended to participate in it. See de la Osa , 158 So. 3d at 731 (affirming conspiracy to commit racketeering convictions and recognizing that a defendant's agreement to participate "may be inferred from his conduct"). We conclude that the State presented sufficient evidence on the conspiracy charge to support the denial of Beasley's motion for judgment of acquittal and to send the case to the jury. Therefore, Beasley has not demonstrated reversible error, and we affirm his conspiracy conviction.
III. Jury instructions on violations of section 379.409
Beasley contends that the trial court committed reversible error by giving fundamentally flawed jury instructions that were incomplete, misleading, and confusing on the violations of section 379.409 in counts two and seven. The case that Beasley relies upon, Nichols v. State , 312 So. 3d 530 (Fla. 2d DCA 2021), is distinguishable from the present case, and we conclude that Beasley is not entitled to relief.
Beasley was convicted on counts two and seven for the illegal possession of alligator eggs or hatchlings on July 26 and October 3, 2016, respectively. The jury found Beasley not guilty of four other counts of section 379.409 offenses in counts three through six.
As to count two, on July 26 Beasley and Albritton brought eggs to SAF where Albritton stated that they had been collected at Cecil Webb, Shell Creek, and Beasley's property—Prairie Creek. The boxes were labeled for Cecil Webb, Shell Creek, and the Seminole Tribe, and transfer forms indicated the same sources. The Seminole Tribe box was placed in the undocumented eggs section of the barn.
As to count seven, when the Officer returned to SAF on October 3, he found that about 168 wild hatchlings had been added to the farm. He observed Albritton and Beasley on a surveillance "game cam" arriving early in the morning on October 3 at SAF and Beasley carrying a large cooler when leaving the farm. The Officer received no documentation from Albritton or Beasley regarding those hatchlings. Albritton and Beasley had access to SAF. The only other people who had access to SAF were three other officers. Albritton called the next morning and told the Officer that his wife, Robin, would be by to help pack up the hatchlings. Section 379.409(1) provides in pertinent part:
(1) A person may not intentionally kill, injure, possess, or capture, or attempt to kill, injure, possess, or capture, an alligator or other crocodilian, or the eggs of an alligator or other crocodilian, unless authorized by rules of the commission.
The trial court instructed the jury as follows:
Illegal killing, possessing, or capturing of alligators or eggs. Applying to Counts 2, 3, 4, and 5 as to Carl Wayne Pickle, and Counts 2, 3, 4, 5, 6, and 7 as to Robert Thomas Beasley.
To prove the charged crime of illegal killing, possessing, or capturing of alligators or eggs, the State must prove the following element beyond a reasonable doubt:
Carl Wayne Pickle and/or Robert Thomas Beasley intentionally and unlawfully killed, injured, possessed, or captured an alligator and/or alligator eggs; or attempted to intentionally and unlawfully kill, injure, possess, or capture an alligator and/or alligator eggs.
It is not unlawful to kill, injure, possess, or capture an alligator and/or alligator eggs if Carl Wayne Pickle and/or Robert Thomas Beasley acted pursuant to a valid permit, abides by the provisions as contained in the permit, and possessed the appropriate valid license.
In the trial court, Beasley argued that an instruction for the lesser included offense in section 379.3751, a misdemeanor, should have been given. This court rejected that argument in Pickle , 328 So. 3d at 1107-08. On appeal here, Beasley does not make that argument. Instead, he now argues that the instructions were confusing and misleading because they did not provide instructions on the specifics of the FWC licensing and permit rules and because the failure to provide such specifics negated his defense that his actions were merely violations of FWC regulations. In doing so, Beasley relies upon Nichols , 312 So. 3d 530.
A trial court is responsible for "giving instructions that are not ‘confusing, contradictory, or misleading.’ " Id. at 533 (quoting Routenberg v. State , 301 So. 3d 325, 328 (Fla. 2d DCA 2020) ). The trial court has the burden "to provide clear, correct, and complete instructions to the jury on what the law is and how it is to be applied." Id.
However, the instructions given in Nichols differ from the instructions given in the present case. In Nichols , the instructions did not include the "unless authorized" language of section 379.409(1). Id. at 532. Rather,
the final instructions given to the jury included the text of the pertinent Administrative Code provisions but did not include any explanation of how the jurors were to consider or apply those provisions. Instead, any such guidance was left solely to Nichols to provide in his closing argument. And while Nichols did use the Administrative Code provisions to support his arguments in closing, he was nevertheless found guilty as charged.
Id. at 533. This court determined that "the instructions omitted a statutory phrase that was critical to the jury's understanding of the law applicable to the charges before it." Id. This court explained that "the trial court's decision to include the Administrative Code provisions in the jury instructions but also to deny Nichols’ request to include the ’unless authorized’ language resulted in the court providing an incomplete, misleading, and manifestly confusing explanation of the law to the jurors." Id. Unlike Nichols , Beasley did not request the trial court to provide the permit provisions and licensing rules in the instructions, despite the trial court asking if he wanted anything further in the instructions for counts two through seven. Beasley contends that fundamental error occurs when "a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense," quoting Carter v. State , 469 So. 2d 194, 196 (Fla. 2d DCA 1985).
But the instruction given was an accurate statement of the law, consistent with the "unless authorized by rules of the commission" language in section 379.409(1). The challenged instruction's language—"acted pursuant to a valid permit, abides by the provisions as contained in the permit, and possessed the appropriate valid license"—describes the required authorization that makes the actions "not unlawful." We agree with the State that the provisions of the permits were evidentiary issues, and the State presented testimony on the requirements for permits and introduced the permits and Beasley's licensing dates into evidence.
As to count two, Beasley argued lack of knowledge and intent to illegally possess eggs on July 26 because he had a valid license and permit. On count seven, Beasley did not have a valid license or permit for possession of the hatchlings on October 3; Beasley argued that the State's evidence did not prove that he was the one who took the 168 hatchlings to SAF. The instructions given did not negate his sole defense as to either count. See Routenberg , 301 So. 3d at 330 (determining that fundamental error occurred in a jury instruction when the "instruction amounted to a directed verdict on Routenberg's sole defense and thereby deprived him of a fair trial").
In fact, the jury found Beasley not guilty on four of the six illegal possession counts. On count two, Beasley had a valid license on July 26, 2016, but the evidence showed that 100 eggs that Beasley collected on his property at Prairie Creek were documented not as coming from Prairie Creek but from the Seminole Tribe of Florida. On count seven, Beasley had neither a valid license nor permit for the 168 hatchlings found at SAF on October 3, 2016.
We conclude that the challenged jury instruction did not deprive Beasley of a fair trial and that no fundamental error occurred. Therefore, he is not entitled to a new trial on this basis.
IV. Preemption of section 379.409
Beasley contends that section 379.3751(4) "preempts" section 379.409 because both statutes prohibit the same conduct yet a violation of the former is a second-degree misdemeanor while a violation of the latter is a third-degree felony. See § 379.401(2)(a)(29), (2)(b)1, (4)(a)8, and (4)(b). He asserts that the denial of his motion for judgment of acquittal on counts two and seven resulted in "a due process violation caused by the conflict between" the two statutes.
First, we agree with the State that Beasley did not preserve a preemption argument but rather raised a due process argument based on "a conflict in the statutes." Second, his limited argument on appeal appears to be one of due process and not the typical concept of preemption such as when a federal statute preempts a state statute or a state law preempts a local ordinance.
As to due process, Beasley has cited no authority in his brief on this issue and has failed to demonstrate a due process violation. Section 379.3751 deals with licensing, and section 379.3751(1)(a) provides in pertinent part: "A person may not take or possess any alligator or the eggs thereof without having been issued an alligator license as provided in this section." Section 379.3751(4) provides in pertinent part: "A person may not take any alligator egg occurring in the wild or possess any such egg unless the person has obtained, or is a licensed agent of another person who has obtained, an alligator egg collection permit." These are level two violations that have misdemeanor criminal penalties for violations of section 379.3751, "relating to licenses for the taking and possession of alligators." § 379.401(2)(a)(29).
Beasley was convicted under section 379.409(1) which provides in pertinent part: "A person may not intentionally kill, injure, possess, or capture, or attempt to kill, injure, possess, or capture, an alligator or other crocodilian, or the eggs of an alligator or other crocodilian, unless authorized by rules of the commission." Section 379.409(4) provides: "A person who violates this section commits a Level Four violation under s. 379.401, in addition to such other punishment as provided by law. " (Emphasis added.) That level four violation is a third-degree felony. See § 379.401(4)(a)8 and (4)(b). Thus, Beasley was on notice that he could be punished under section 379.409 for a third-degree felony, in addition to punishments provided by other laws.
It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. Traditionally, the legislature has left to the prosecutor's discretion which violations to prosecute and hence which range of penalties to visit upon the offender.
State v. Cogswell , 521 So. 2d 1081, 1082 (Fla. 1988) (quoting Fayerweather v. State , 332 So. 2d 21, 22 (Fla. 1976) ). When a person's "act violates more than one criminal statute, the Government may prosecute[ ] under either so long as it does not discriminate against any class of defendants." United States v. Batchelder , 442 U.S. 114, 123–24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). The fact that a defendant's actions may violate two laws "does not detract from the notice afforded by each." Id. at 123, 99 S.Ct. 2198. If "overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied." Id.
Section 379.3751 and section 379.409 each define the conduct prohibited and the authorized punishment. Further, section 379.409(4) explicitly puts defendants on notice that "[a] person who violates this section commits a Level Four violation under s. 379.401, in addition to such other punishment as provided by law ." (Emphasis added.) Thus, Beasley has not shown a due process violation and is not entitled to relief on this basis.
V. Section 379.409 and the nondelegation doctrine
Beasley contends that section 379.409 is unconstitutional because the legislature improperly delegated the power to determine what constitutes criminal conduct to the FWC. We disagree.
Beasley argues that section 379.409 demonstrates by its language, "unless authorized by rules of the commission," that the statute violates the nondelegation doctrine inherent in the separation of powers provision of the Florida Constitution. See Avatar Dev. Corp. v. State , 723 So. 2d 199, 201 (Fla. 1998) (recognizing the separation of powers doctrine) (citing art. II, § 3, Fla. Const.) Beasley contends that by allowing the FWC to promulgate the rules, the statute essentially allows the FWC to define what is and is not illegal under section 379.409, thus improperly delegating the legislative branch authority to define crimes to an executive branch agency. However, our supreme court in Avatar Development specifically rejected this argument in the context of a similar statute using similar language.
In Avatar Development , the defendant challenged the constitutionality of section 403.161(1)(b), Florida Statutes (1993), which provided that it was a violation of the law "[t]o fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the [D]epartment [of Environmental Protection] pursuant to its lawful authority." 723 So. 2d at 201. Avatar contended that this language resulted in the legislature delegating its authority to define crimes to the Department of Environmental Protection (DEP). Id. at 202. In rejecting this argument, the court stated that the statute did not allow the agency "to determine which acts constitute a crime." Id. at 204.
DEP has no authority to pick and choose which rule, regulation, or permit condition shall be prosecuted upon its violation. Rather, DEP utilizes its expertise and special knowledge to flesh out the Legislature's stated intent to prevent pollution by creating rules, regulations and permit conditions necessary to effectuate the Legislature's overall policy of preventing and controlling pollution in the infinite variety of situations that may occur in which Florida's natural environment may be threatened. The Legislature itself is hardly suited to anticipate the endless variety of situations that may occur or to rigidly prescribe the conditions or solutions to the often fact-specific situations that arise. On the other hand, DEP is peculiarly qualified and suited to handle this charge. Thus, the statute merely operates as an enforcement tool to ensure compliance with DEP's rules, regulations and permit conditions and does not provide DEP with unlimited discretion to define which acts constitute a crime .
Id. (emphasis added).
Here, section 379.409, like section 403.161 in Avatar Development , does not leave it to the FWC to define what acts constitute crimes. The FWC uses its expertise and specialized knowledge to set the parameters of the alligator management program, including the standards by which licenses and permits will be issued, the number of permits that will be issued, and the rules for management of alligators that are both held captive and harvested for meat and skins. These acts are clearly outside the expertise of the legislature. However, the legislature has enacted section 379.409 to serve as an enforcement mechanism to ensure compliance with the FWC's rules, regulations, and permitting structure. As with the statute at issue in Avatar Development , this is not an improper delegation of legislative authority.
Another case Beasley relies upon, Sloban v. Florida Board of Pharmacy , 982 So. 2d 26 (Fla. 1st DCA 2008), is distinguishable on its facts. There, section 456.072(6), Florida Statutes (2006), purported to give a pharmacy board the option to adopt reapplication rules for formerly licensed pharmacists. 982 So. 2d at 30. The board denied Sloban's application for relicensure, noting that it had not adopted rules permitting a formerly licensed pharmacist to apply for relicensure. Id. at 29. The First District determined that it was improper for the legislature to give the board the unfettered discretion to decide whether to adopt regulations concerning relicensure without providing any standards or guidelines regarding when or if the board should exercise its discretion to establish such rules. Id. at 30.
Here, however, unlike in Sloban , the legislature has not delegated broad policy decisions to the FWC, and the FWC was not given unfettered discretion concerning whether to act. The FWC is charged with exercising regulatory and executive powers with respect to wild animal life in Florida, see Art. 4, § 9, Fla. Const. (creating the FWC), and it has adopted a broad regulatory scheme dealing with all aspects of alligator management. The FWC has not been given the unfettered discretion to decide whether to regulate alligator farmers and egg collectors. Therefore, the decision in Sloban does not mandate a reversal here, and we affirm Beasley's convictions in counts two and seven for violations of section 379.409.
VI. Cross-appeal: downward departure sentence
The State contends that the evidence refuted the trial court's finding that Beasley was a relatively minor participant in the conspiracy and that the trial court thus erred in finding a basis for a downward departure sentence under section 921.0026(2)(b), Florida Statutes (2016). We disagree and affirm the downward departure sentence.
Beasley's scoresheet reflects that his lowest permissible sentence under the Criminal Punishment Code was 22.05 months in prison. After conducting an over week-long trial, the court imposed a downward departure of a concurrent eleven months and twenty-nine days in jail on all counts, followed by ten years’ probation on the conspiracy count. The trial court made the following findings on the record regarding sentencing:
My concern is that the person that really ran this operation, as it relates to Mr. Beasley, was Mr. Albritton. And even as I struggled through the testimony in the trial, because of the nature of a conspiracy charge, that most of the trial related to what Mr. Albritton was doing as it related to this conspiracy activity. Make no mistake, he had a system set up to make a whole lot of money and get benefit out of that project, with alligator nests almost being little gold mines at the rate that they're paying for eggs.
And I understand where the State comes from when they talk about the decimation of the alligators. The testimony from Cecil Webb is if the idea behind preserving the alligators—whether you like them or not—is that 50 percent of the eggs should be collected, not 100 percent. It seemed pretty clear to me that they were going to take every egg they could find, and find some way to launder it to get every penny they could out of the alligators. And when I say they, then I look at who is benefitting from those particular numbers, and Mr. Albritton certainly was a benefactor of those.
And really the only argument that the State's made, at least that I'm buying about what Mr. Beasley was benefitting, was, one, keeping his job with Mr. Albritton, and this potential to be a worker at the factory when the new factory is opened up here in Florida. But they certainly went through a lot of eggs, made a lot of money out of it, there is no doubt about that. And again, when I say they, mostly Robert Albritton.
The reason I wanted you to respond to [ section 921.0026(2) ](b) is when you talk about the defendant being an accomplice to the offense and was a relatively minor participant in the conduct, this is a unique circumstance of a case where no reasonable person could say that Mr. Beasley was equally as responsible as Robert Albritton. And I went
through Mr. Albritton's case, I remembered when I took the plea, he was sentenced to 3 years in prison. There's no good conscience of mine that could sentence Mr. Beasley to the same thing that Mr. Albritton got, when he put this whole thing together and then Mr. Beasley was a participant and employee that worked along with him.
Certainly from the evidence that I heard in trial, there is no doubt in my mind that Mr. Beasley knew generally what was going on, knew they were not following the rules. You know, that the guilt for—that he participated in the conspiracy, that the conspiracy was a complicated conspiracy to really do a lot of positive things. But the specific conduct of Mr. Beasley, whether it's working for Mr. Albritton, or calling in a set of eggs that they knew were taken on a different day that was in violation of a permit, or picking up some eggs, or doing anything, I just cannot find that as a substantial participant. And yes, I believe he substantially participated in collecting eggs, that's easy, but you don't score prison on the collecting of the eggs. It's to what extent was he a participant in a conspiracy to commit racketeering. And this process has forged documents, you know, licenses that weren't received. And all the trickery and deceit, the majority of that I lay on the hands of Robert Albritton. And although I believe Mr. Beasley willingly went along with what happened, I do think he was a relatively minor participant in that criminal conduct as relates to the conspiracy. And since that's the charge that's causing prison, I think that's the one I have to address as it relates to the downward departure.
Once I've determined that he is a relatively minor participant in the criminal conduct, then I have to take the next level of analysis which is determine whether I think it's appropriate under the circumstances and facts of this particular case. And I do think a departure is appropriate under the facts of this case as relates to Mr. Beasley, and I am going to sentence him to a downward departure.
In its written order, the trial court made the following findings regarding the departure sentence:
The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct pursuant to F.S. 921.0026. The Court finds that specifically in relation to the charge of Conspiracy to Commit Racketeering, the leader of the criminal enterprise was Robert Albritton. Although this Defendant was part of the conspiracy, the Court finds that his participation, in relation to Robert Albritton, was minor. This is not to minimize the criminal culpability of this Defendant, but when taken in context considering the extensive culpability attributable to Robert Albritton, the Court determined this Defendant's participation was relatively minor.
In considering a downward departure, the trial court must first "determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it." State v. Chubbuck , 141 So. 3d 1163, 1168 (Fla. 2014). The factual support necessary is competent, substantial evidence. Williams v. State , 286 So. 3d 892, 896 (Fla. 2d DCA 2019). If that test is met, then the trial court must make the second determination of "whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case." Chubbuck , 141 So. 3d at 1169 (quoting Banks v. State , 732 So. 2d 1065, 1068 (Fla. 1999) ). A trial court makes "a judgment call" within its sound discretion on whether it should impose a departure sentence. State v. Johnson , 288 So. 3d 765, 767 (Fla. 2d DCA 2020) (quoting Banks , 732 So. 2d at 1068 ).
The defense argued and the trial court found a valid, legal ground for departure under section 921.0026(2)(b). Section 921.0026(2)(b) allows a downward departure from the lowest permissible sentence when "[t]he defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct." The State contends that competent, substantial evidence does not support this departure reason.
The State relies on cases such as State v. Milici , 219 So. 3d 117 (Fla. 5th DCA 2017), and State v. Johnson , 197 So. 3d 1268 (Fla. 2d DCA 2016). In Milici , at issue was the sentencing for robbery with a weapon and aggravated assault with a deadly weapon. 219 So. 3d at 119. The Milici court determined that the defendant was not a minor participant and explained, "[W]e disagree that one who obtains a fraudulent prescription, unsuccessfully attempts to fill it, drives his co-defendant to purchase a pellet gun, and drives back to rob the pharmacy is a ’minor participant’ simply because he or she drove the getaway vehicle in lieu of entering the pharmacy during the robbery." Id. at 123.
In Johnson , this court reversed a downward departure for the offense of uttering a counterfeit instrument. 197 So. 3d at 1268. Johnson took the check to a bank and attempted to cash it; he received no " ’financial benefit’ only because the bank teller refused to cash the check." Id. at 1269. This court observed that "[n]o testimony or evidence was presented to support the assertion that Johnson was a minor participant in the offense." Id. Further, while defense counsel argued that "an uncharged ringleader coordinated the offense in a larger criminal enterprise," we reiterated that argument by counsel is not evidence and is insufficient to be a basis for departure. Id. at 1268-69.
Beasley was paid a wage of $15 an hour. While the trial court found that he was a participant in the conspiracy, the court found, based on the evidence that was presented, that Albritton put the operation together, engaged in the majority of the trickery and deceit, and was the one who financially benefitted from the operation. Co-defendant Pickle was not involved in the day-to-day operations of the farm as Beasley was, but Pickle was paid per egg and was paid over $58,000 from July through September of 2016. Pickle also received a downward departure sentence, and although this court reversed his conspiracy conviction, this court affirmed his convictions and sentences for illegally taking alligator eggs and stated, "We affirm, without comment, as to the cross-appellant State's issue regarding the downward departure sentence." Pickle , 328 So. 3d at 1103.
Beasley's role was that of a farmhand working the logistical day-to-day operations of the farm and the animals. Witnesses described Beasley as a "helper" and a "worker bee" who knew how to collect eggs and how to store alligator eggs and hatchlings. Thus, although he worked in the day-to-day operations, it was Albritton who was in charge of the business end, who made decisions on egg collections, who negotiated with the Louisiana farm, and who made the fraudulent documents. Although Beasley was part of the conspiracy, the trial court's detailed findings, including that Beasley's participation in relation to Albritton's participation was relatively minor, are supported by competent, substantial evidence. We cannot say that the trial court abused its discretion in determining that a downward departure sentence was appropriate for Beasley as a relatively minor participant in Albritton's scheme. Therefore, in addition to affirming his convictions, we affirm his sentences.
Affirmed.
ROTHSTEIN-YOUAKIM and SMITH, JJ., Concur.