Opinion
No. 2D99-2347.
Opinion filed April 19, 2000.
Appeal from the Circuit Court for Pinellas County; Brandt C. Downey, III, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellant.
Richard N. Watts, St. Petersburg, for Appellee.
The State of Florida appeals a downward departure sentence which the trial court entered after Jacline Rose Knopp admitted to a violation of probation. Because we find that the departure sentence was not supported by competent substantial evidence, we reverse.
The underlying crime in this case is first-degree robbery, which Knopp and some accomplices committed in the convenience store where she worked. At the original sentencing, the trial court departed downward based in part on the need for $3,200 in restitution to the store owner. Knopp twice violated probation, this time by testing positive for cocaine. She admitted to the violation, and the sentencing hearing was extremely brief.
The sentencing guidelines scoresheet called for a minimum state prison sentence of 51.6 months. The trial court sentenced Knopp to a two-year term of drug offender community control, and ordered her to serve six months in jail as a special condition. The trial court based this downward departure sentence on a finding that the need for restitution outweighed the need for a prison sentence. The only evidence offered to support a downward departure consisted of defense counsel's representations that Knopp had taken her GED; that she had enrolled in drug treatment; that her drug counselor had written the judge a letter noting that she was doing well in treatment; and that her accomplices, who were both in prison, had not paid restitution. Counsel also represented that Knopp had reduced her restitution amount from $3,200 to $900.
There is nothing in the record to suggest that this letter was offered into evidence at the hearing.
The State correctly argues that this evidence is insufficient to support a downward departure. In order to establish a sufficient legal ground for departure, the defense must prove the facts supporting the ground by a preponderance of the evidence. See Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999). An appellate court should affirm a departure only if it finds competent substantial evidence in support of it. Id. Evidence which would support a departure based on the need for restitution versus the need for imprisonment includes the nature of the victim's loss, the effectiveness of restitution, and the consequences of imprisonment. Id. at 1069. However, when the defense fails to offer evidence of these factors apart from the argument of defense counsel, a departure cannot be sustained. See State v. Amodeo, No. 99-1095, slip op. at 2 (Fla. 5th DCA Dec. 13, 1999); State v. Bleckinger, 746 So.2d 553, 556 (Fla. 5th DCA 1999).
Because Knopp did not offer any evidence to support a downward departure based on the need for restitution other than argument by defense counsel, we are compelled to reverse and remand for resentencing within the guidelines. See Amodeo, No. 99-1095, slip op. at 2; Bleckinger, 746 So.2d at 556-57. While we can understand the trial court's determination that the guidelines sentence might not be proportional to the violation in this case, we must adhere to the applicable law.
Reversed and remanded.
CASANUEVA and DAVIS, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.