Second, Robinson's lack of criminal activity since his arrest for the charged offenses is not a legally valid reason for departure. State v. Stephenson, 973 So.2d 1259, 1264–65 (Fla. 5th DCA 2008) (“That a defendant refrains from criminal activity for a short time is an insufficient reason for a downward departure.”); see also State v. Geoghagan, 27 So.3d 111, 114 (Fla. 1st DCA 2009) ; State v. Nathan, 632 So.2d 127, 128 (Fla. 1st DCA 1994). Moreover, to the extent the trial court's statements concerning the sheriff's “confidence” in Robinson were intended to be findings that Robinson is rehabilitated and poses no future threat or danger to society, there is no competent substantial evidence to support such findings.
See State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008); State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999). In evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy. State v. Geoghagan, 27 So.3d 111, 115 (Fla. 1st DCA 2009); Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001) (during sentencing, question trial court should ask is whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); State v. Chestnut, 718 So.2d 312, 313 (Fla. 5th DCA 1998). As noted in Chestnut, because the first purpose of sentencing is to punish, a downward departure from the permissible sentence is discouraged and adequate justification is required. Id. Second, the mitigating factors expressly authorized by the Legislature mainly focus on the offense itself: the nature of the crime, the defendant's level of criminal involvement or participation, the mental capacity or state of mind of the defendant.
An open plea to a trial court (including one that includes a cap above the minimum sentence called for by the sentencing guidelines) that does not specifically include a departure sentence jointly recommended to the trial court does not constitute a mitigating circumstance permitting a downward departure. See State v. Saunders, 322 So.3d 763, 766 (Fla. 2d DCA 2021) ("The record clearly reflects that the State did not agree to sentences of time-served; therefore, there was no plea agreement upon which to base the departure sentences."); see also State v. Geoghagan, 27 So.3d 111, 113 (Fla. 1st DCA 2009); State v. Pita, 54 So.3d 557, 560 (Fla. 3d DCA 2011); State v. Brannum, 876 So.2d 724, 727 (Fla. 5th DCA 2004).
And though the statute's list of mitigating circumstances is not exclusive, a trial court may consider other circumstances only when the reason for departure is consistent with legislative sentencing policy. SeeState v. Geoghagan , 27 So. 3d 111, 115 (Fla. 1st DCA 2009). As to the trial court's first ground for departure, a generalized concern over the COVID-19 pandemic is not one of the statutory mitigating factors, nor one that is consistent with legislative sentencing policies.
(first citing State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013) ; then citing State v. Knox, 990 So. 2d 665 (Fla. 5th DCA 2008) ; and then citing State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005) )); State v. McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010) ("In evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy." (first citing State v. Geoghagan, 27 So. 3d 111, 115 (Fla. 1st DCA 2009) ; then citing Rafferty v. State, 799 So. 2d 243, 248 (Fla. 2d DCA 2001) ; and then citing State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998) )). While section 921.0026(2) lists various reasons for departure, trial courts are not constrained to the listed reasons.
Likewise, her familial obligation is not a valid ground for a downward departure sentence. State v. Geoghagan, 27 So.3d 111 (Fla. 1st DCA 2009). Nor can the departure sentence be affirmed on the ground that Appellee requires mental health treatment for battered woman's syndrome, as suggested on appeal. Appellee did testify that she has had a history of "abusive relationships." Further, Joanna Johnson, who conducted a substance abuse evaluation, testified below that Appellee "needs to be seen by a mental health provider" noting that Appellee "has been a battered woman, she has had experiences with ill-fated relationships that have left her victimized; and then she victimizes.
All three elements must be established to justify a downward departure on this basis. See id. (citing State v. Geoghagan, 27 So.3d 111, 114 (Fla. 1st DCA 2009) ; State v. Jerry 19 So.3d 1167, 1170 (Fla. 1st DCA 2009) ); State v. Thompkins, 113 So.3d 95, 98 (Fla. 5th DCA 2013) (citing State v. Brannum, 876 So.2d 724 (Fla. 5th DCA 2004) ); State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (citing State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004) ). We conclude that none of the elements have been established in this case and begin our analysis with the most obvious.
Under the plain language of section 921.0026(2)(j), all three elements—lack of sophistication, isolated incident, and remorse—must be established to permit a departure sentence. State v. Geoghagan, 27 So.3d 111, 114 (Fla. 1st DCA 2009); State v. Jerry, 19 So.3d 1167, 1170 (Fla. 1st DCA 2009). Here, the State argues that a downward departure was not warranted because Burt's offenses were not isolated. Burt's prior record consists of two alcohol—related driving offenses—a DUI conviction in 2006 and a reckless driving conviction in 2007.
The trial court imposed a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2012), upon finding the offenses were committed in an unsophisticated manner and were isolated incidents for which appellee had shown remorse. Under the plain language of section 921.0026(2)(j), all three elements—lack of sophistication, isolated incident, and remorse—must be established to permit a departure sentence. State v. Geoghagan, 27 So.3d 111, 114 (Fla. 1st DCA 2009); State v. Jerry, 19 So.3d 1167, 1170 (Fla. 1st DCA 2009). The state argued below that a downward departure was not warranted because appellee's offenses were not isolated and appellee had not shown sufficient remorse.
See Henderson, 108 So.3d at 1141 (“The fact that a defendant has a minor child requiring care and support has previously been rejected as grounds for downward departure.” (citations omitted)); State v. Geoghagan, 27 So.3d 111 (Fla. 1st DCA 2009); Stephenson, 973 So.2d at 1264 (“ ‘Florida courts have consistently held that family support concerns are not valid reasons for downward departure.’ ” (quoting State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006))); State v. Amaro, 762 So.2d 998 (Fla. 5th DCA 2000); State v. Skidmore, 755 So.2d 647 (Fla. 4th DCA 1999). Regarding the asserted ground that Thompkins could have harmed the victim but did not, this court has held that the fact that the crime was not committed in a more heinous manner is not a ground for departure.