Florida Criminal Law Opinions

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Damoorgian, J.

Dorothy Ray appeals an order denying her motion to suppress drug evidence obtained during an investigatory traffic stop which led to her arrest for possession of cocaine. After the trial court denied Ray’s motion, she entered a no contest plea, reserving her right to appeal the order. On appeal, Ray argues that at the time the arresting officer activated her emergency lights, the officer did not have a reasonable suspicion that Ray had committed a crime. Therefore, the traffic stop was illegal and the evidence obtained incident to the stop cannot be used against her. We agree and reverse.

At the hearing for the motion to suppress, the arresting officer testified that she was monitoring the neighborhood where Ray’s arrest took place in response to resident complaints of drug dealing. The officer observed Ray drive up and stop in the middle of the road. While Ray remained inside the vehicle, an unknown adult male approached the passenger side of the vehicle. The officer observed some sort of hand-tohand exchange between Ray and the unidentified male. Although the officer could not identify the objects exchanged between the two, she perceived the exchange to be a drug transaction.

After the exchange, the officer followed Ray as she drove away. The officer activated the lights on her police cruiser in an attempt to effectuate a traffic stop. Ray subsequently drove through a stop sign without stopping and the officer pulled her over. As the officer approached, Ray dropped a small amount of a white substance out of her

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vehicle’s window. The substance was recovered and tested positive for cocaine.

Ray argues that the officer could not form a reasonable suspicion that she participated in a drug transaction. The State counters that, based on the totality of the circumstances, including the nature of the exchange, the officer’s narcotics training, and the location’s reputation as a drug area, the officer could form a reasonable suspicion that a drug transaction occurred. Alternatively, the State argues that Ray was detained and investigated because of a traffic law violation.

“A trial court’s ruling on a motion to suppress comes to this Court clothed with a presumption of correctness, so that trial court resolution of factual and evidentiary conflicts should not be disturbed on appeal.” Stone v. State, 856 So. 2d 1109, 1111 (Fla. 4th DCA 2003). Legal conclusions, however, are reviewed de novo. Backus v. State, 864 So. 2d 1158, 1159 (Fla. 4th DCA 2003).

To stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Id. (citing Carter v. State, 454 So. 2d 739, 741 (Fla. 2d DCA 1984)). A court should look at the totality of the circumstances to determine if the conditions supporting a reasonable suspicion existed. Santiago v. State, 941 So. 2d 1277, 1279 (Fla. 4th DCA 2006) (citing Belsky v. State, 831 So. 2d 803, 804 (Fla. 4th DCA 2002)).

Factors which can be evaluated in determining whether a reasonable suspicion exists in an alleged drug transaction include (a) whether the officer can see either drugs or money being transferred; (b) the officer’s narcotics experience; (c) the reputation of the location for drug transactions; (d) the extent of the period of surveillance; and (e) the history of previous multiple arrests from that site. Id. (citing Burnette v. State, 658 So. 2d 1170, 1171 (Fla. 2d DCA 1995)). Courts have applied a combination of these factors in various degrees.

It is not absolutely necessary for an officer to view the exchange of drugs to establish a reasonable suspicion of a drug transaction. Id. (citing Walker v. State, 846 So. 2d 643, 645 (Fla. 2d DCA 2003)). For example, in Burnette, the Second District concluded that the police could form a reasonable suspicion that a drug transaction took place because

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(a) the officer had extensive drug training; (b) the defendant was making an exchange with an identified known drug dealer; and (c) the transaction took place at a location where the police had previously made thirty to forty drug arrests. 658 So. 2d at 1171. The court reached this conclusion even though the officer could not identify the objects exchanged in the transaction. Id.

This Court has stated, though, that an “officer’s observation of handto-hand movements between persons in an area known for narcotics transactions, without more, does not provide a founded suspicion of criminal activity.” Belsky, 831 So. 2d at 804 (emphasis added); see also Messer v. State, 609 So. 2d 164, 165 (Fla. 2d DCA 1992) (“In those instances where no contraband was observed, the officer was deemed to have had only a ‘bare’ rather than a ‘reasonable’ suspicion that the defendant was engaged in criminal activity.”); Waddell v. State, 652 So. 2d 917, 917-19 (Fla. 4th DCA 1995) (holding that the observance of two unknown African-American males approaching a truck driven by a white male, without witnessing the exchange of drugs or money, did not amount to a reasonable suspicion).

In this case, there were not enough factors present to support a finding of reasonable suspicion. The officer could not identify the objects exchanged and did not identify the individual involved in the exchange with Ray as a known drug dealer. The record does not indicate that the neighborhood had a history of extensive drug arrests; rather, it had only a general reputation as a high drug area. In cases where the transaction occurred within a high drug area, courts have refused to acknowledge a reasonable suspicion in the absence of other factors. See Panter v. State, 8 So. 3d 1262, 1264-66 (Fla. 1st DCA 2009) (concluding that a reasonable suspicion did not exist when an officer viewed a hand-tohand transaction outside of a known narcotics house); Belsky, 831 So. 2d at 804-05 (holding that an officer, on patrol in high crime area, did not have a reasonable suspicion when he witnessed a hand-to-hand transaction without identifying the objects exchanged). Although the arresting officer had narcotics sale training, this fact does not compensate for the lack of other supporting factors. See Walker, 846 So. 2d at 645 (concluding that reasonable suspicion did not exist when the officer, who had performed numerous drug arrests and had forty hours of drug training, witnessed a hand-to-hand transaction in a high drug area but did not see any drugs or money change hands).

The State alternatively argues that Ray’s traffic infraction constituted the commission of a crime which justified the officer’s seizure of her. See D.A. v. State, 10 So. 3d 674, 676 (Fla. 3d DCA 2009) (stating that “a

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seizure is permissible if the seizing officer has probable cause to believe a traffic infraction has occurred.”). Further, the State asserts that the arresting officer’s activation of the lights on her police vehicle did not constitute the beginning of the seizure. Rather, the seizure occurred subsequent to Ray’s violation of the traffic law. The State did not make this argument in the trial court.

An appellate court may apply the “tipsy coachman” doctrine to affirm a lower court’s holding when the lower court reached the correct result despite using incorrect reasoning. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999). The tipsy coachman doctrine may be used when there is any evidence in the record which would support an alternate legal argument for affirmance, even if this argument was not raised in the lower court. Id. at 644. However, the tipsy coachman doctrine is not applicable in the instant case. At the hearing, the arresting officer stated she pulled over Ray because of the alleged drug transaction, not because of a traffic law violation. Furthermore, courts have routinely held that the use of emergency lights “‘evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.’” Errickson v. State, 855 So. 2d 700, 702 (Fla. 4th DCA 2003) (quoting Young v. State, 803 So. 2d 880, 882 (Fla. 5th DCA 2002)). When the arresting officer activated her emergency lights to pull over Ray, she commenced an investigatory stop without reasonable suspicion. Ray’s traffic infraction occurred after the officer turned on her lights.

We conclude that the arresting officer did not have a reasonable suspicion of a drug transaction to justify the investigatory stop. The officer could not identify the objects exchanged, the participant involved in the exchange with Ray was not a known drug dealer, and the officer was monitoring the area in response to reported drug deals rather than prior drug arrests. Because the arresting officer was not justified in performing the investigatory stop, the trial court erred in denying Ray’s motion to suppress. We therefore reverse Ray’s judgment and conviction and remand for further proceedings.

Reversed and Remanded.

Farmer and Levine, JJ., concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

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Broward County; Michael L. Gates and Michelle Towbin Singer, Judges; L.T.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Ciklin, J.

The instant appeal requires us to determine if the trial court erred in giving a jury instruction regarding an inference to be drawn by the possession of recently stolen property. Because the victim could not positively identify the defendant as one of the two assailants at the scene of the alleged crime and because the stolen property was never found in the defendant’s possession, the proper factual basis to support the instruction on inference of knowledge was missing. Accordingly, we must reverse the defendant’s conviction and order a new trial as to this charge.

The appellant, Jawara Ward, was charged with robbery (count I) and grand theft of a motor vehicle (count II). At trial, the victim testified that while riding his motorized scooter from work to home, he was accosted by two men. One man walked over and picked up the scooter while the second man observed, straddling his bicycle. The two crooks struggled to re-start the motorized scooter and eventually forced the victim to start it himself. During the encounter, both attackers reached into the victim’s pockets, making off with his money, wallet and cell phone. When the assailants left the scene, the victim ran for home and reported the crime to the police. The victim was unable to identify Ward as one of the men who had robbed him.

Detective Merlin Ghobrial testified that after being assigned to the case he developed Ward as a suspect. Ward initially denied involvement in the robbery but admitted that he was given a cell phone from a man whom he knew as “Showtime.” According to Ward, Showtime informed

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him that he and another man had just committed a “lick”¹ and taken a phone, scooter and $30-40 cash. After linking other evidence from the robbery to Ward, including a record of phone calls made from the stolen cell phone to Ward’s brother just minutes after the robbery, Ward was placed under arrest. During a search incident to this arrest, Detective Ghobrial found a black wallet on Ward’s person that contained only the victim’s bank card. Ward then admitted that “Showtime” stole the scooter and left it in a small, secluded wooded area where the men occasionally congregated. The scooter was eventually recovered in the wooded area described by Ward.

After the close of all evidence, the trial court proceeded to instruct the jury on the applicable law. As the court read the jury instructions regarding the grand theft of a motor vehicle count, it started to read the “possession of recently stolen property inference instruction” only to stop and confer with both sides as to its appropriateness. The lawyers seemingly reminded the judge that the inference instruction was to be removed and the trial court agreed, saying “Okay, it’s out, it’s out.” However, after reading the jury instructions pertaining to the grand theft of a motor vehicle charge including the lesser included offenses, the trial court inexplicably read the subject inference instruction:

Proof of possession of recently-stolen property unless satisfactorily explained gives rise to an inference that the person in possession of the property knew or should have know that the property had been stolen.

Ward was eventually found guilty as charged and sentenced to eight years in prison as to the robbery and a concurrent five years for the grand theft of a motor vehicle charge. Ward now appeals his conviction for grand theft of a motor vehicle, claiming that the trial court’s decision to give the inference instruction in connection with that count was not supported by a proper factual basis since no evidence presented at trial purported to show that Ward was ever in personal possession of the scooter.

A trial court’s decision regarding jury instructions is reviewed under the abuse of discretion standard. See Carpenter v. State, 785 So. 2d 1182, 1199-1200 (Fla. 2001) (“This Court has explained that a trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.”); see also Bozeman v. State, 931 So. 2d 1006,

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1008 (Fla. 4th DCA 2006).

Section 812.022(2), Florida Statutes (2008) provides that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” If the appropriate facts are present, the trial court is entitled to instruct the jury as to this “inference.” See Boone v. State, 711 So. 2d 594, 596 (Fla. 1st DCA 1998) (“[T]he prosecution must demonstrate a factual basis for appellant’s possession before the jury instruction may be given.”). “Perhaps most importantly, the instruction is proper only where the possession is personal, where it involves a distinct and conscious assertion of possession by the accused, and where the possession is exclusive.” Id. (citing King v. State, 431 So. 2d 272 (Fla. 5th DCA 1983) & Chamberland v. State, 429 So. 2d 842 (Fla. 4th DCA 1983)). ‘”The “exclusive” requirement does not mean that defendant’s possession must be separate from the possession of all other persons. The joint possession of two or more persons acting in concert is “exclusive” as to any one of them.’” Bozeman, 931 So. 2d at 1008 (quoting Scobee v. State, 488 So. 2d 595, 598 (Fla. 1st DCA 1986)); see also Walker v. State, 896 So. 2d 712, 720 n.5 (Fla. 2005).

In Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979), the defendant was charged with burglary of a dwelling. The facts showed that after struggling with the victim in the victim’s home, the defendant and a cofelon made their escape. Soon thereafter officers found the co-felon lying in a field approximately one quarter of a mile from the victim’s apartment. This co-felon had in his possession watches, rings, other jewelry, and a gun belonging to the victim. However, “[t]here was no evidence at the trial tending to connect [the defendant] with [the cofelon], nor with the stolen items in [the co-felon's] possession, other than the testimony of the victim… who admittedly had the opportunity to observe the second assailant for only a few brief seconds during the altercation in the apartment.” Id. at 861. The court held that, under these circumstances, the issuance of the “possession of recently stolen goods” jury instruction amounted to reversible error because “there was no evidence of possession by defendant.” Id. at 861. The court stated that

Evidence of possession by [the co-felon], who was not on trial, of property recently stolen from [the victim] would tend to identify [the co-felon] as one of the assailants, but it would have no tendency whatever to identify appellant as the second assailant. The charge given in this case, being

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unsupported by the evidence, was improperly given and was highly prejudicial in light of the entire record in the case which reveals that the crucial issue was identity of the appellant as one of the participants in the crime.

Id.; see also Garcia v. State, 899 So. 2d 447, 451 (Fla. 4th DCA 2005) (holding that, for purposes of “possession of recently stolen property” instruction, appellant’s presence in a van with three other co-felons and victim’s property did not amount to “exclusive possession of the stolen property or [an] ability to exercise any dominion and control over it”).

Although the evidence in the instant case revealed that Ward was in personal possession of the victim’s cell phone and wallet, there is no evidence that Ward was ever in actual possession of the scooter. While the victim testified at trial that a man on a bicycle was present when another unidentified man took his scooter, the victim was unable to identify Ward as either of the two. Moreover, fingerprints recovered from the scooter did not match those of Ward and the scooter was eventually recovered from a wooded area in the neighborhood but not in any person’s possession. The crucial inquiry in determining the existence of a proper factual basis to support this instruction is whether possession is personal and “involve[s] a distinct and conscious assertion of possession by the accused.” Chamberland, 429 So. 2d at 843. The lack of such evidence in this case precluded the trial court from giving the subject inference instruction.

It is also clear that this was not harmless error since the crucial issue herein was the identity of the accused. See, e.g., Griffin, 370 So. 2d at 862 (holding that erroneous issuance of “possession of recently stolen property” instruction was “highly prejudicial” when the crucial issue was identity of the appellant as one of the participants in the crime). The inference instruction also allowed the jury to infer not only that Ward knew all the items were stolen, but that he in fact was at some time in possession of the stolen scooter. Because the evidence was completely to the contrary, the jury might reasonably have been misled because of the confusing inference instruction. See Mogavero v. State, 744 So. 2d 1048, 1050 (Fla. 4th DCA 1999) (holding that a trial court “should not give instructions which are confusing, contradictory, or misleading” (citations omitted)).

Therefore, we must reverse Ward’s conviction for grand theft of a motor vehicle and order a new trial as to that charge.

Reversed and remanded for a new trial.

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Gross, C.J., and Stevenson, J., concur.

* * *Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T.

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^1. The term “lick” is often used as slang terminology for a “robbery.”
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Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

Appellant, Lamercus Law, appeals his convictions for driving while license revoked pursuant to section 322.34(5), Florida Statutes, and DUI impairment. We affirm on all issues, but write to correct a misreading of State v. Byrd, 969 So. 2d 581 (Fla. 4th DCA 2007), involving the use of redacted records maintained by the Department of Highway Safety and Motor Vehicles (“DHSMV”).

The state charged Law with a violation of section 322.34(5) as well as driving while impaired. “A conviction under section 322.34(5) simply requires competent evidence showing that the DHSMV maintained a record on the motorist, that the record reflected three prior moving violation convictions, and that the motorist received notice of his designation as a habitual traffic offender and the resulting suspension of his license.” Patterson v. State, 938 So. 2d 625, 630 (Fla. 2d DCA 2006). If the record offered by the state fails to designate the requisite convictions to justify the habitual traffic offender designation under section 322.264, then the state has failed to make a prima facie case for a section 322.34 felony violation for driving on a revoked license. Carter v. State, 23 So. 3d 1238, 1244 (Fla. 4th DCA 2009).

When the state sought to admit Law’s driving record into evidence as a self-authenticating document, defense counsel objected to one entry on the driving record, contending that the entry was prejudicial and should be redacted. The state and the court both cited to Byrd for the proposition that it was error for the trial court to ever redact a driving record. Later, however, the trial court readdressed the issue and

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determined that based upon a section 90.403 analysis of prejudice outweighing probative value, it still denied the redaction. Based upon the court’s interpretation of Byrd, the trial court denied the request.

In Byrd we affirmed a judgment of acquittal by the trial court, where the state had not proved the requisite number of convictions, because it had offered a redacted copy of the defendant’s driving record. We explained that “the state, without an order requiring it to do so, presented only a redacted version of appellant’s driving record which did not show that he was a habitual traffic offender as defined in section 322.264, Florida Statutes.” Byrd, 969 So. 2d at 582 (emphasis supplied). In other words, the record admitted into evidence did not show the requisite convictions to prove a violation of the statute. Contrary to the trial court’s recollection of the opinion, Byrd did not hold that a redacted driving record can never be placed in evidence. In fact, we explained in a footnote: “Redaction should occur only where a court orders it upon a motion by the defendant (such as to prevent undue prejudice where the record is more extensive and has notations of other criminal acts) or where the parties agree to submit the redacted version.” Id. at 582 n.1. Where the defendant moves for redaction or where the parties agree to a redacted version of the driving record, “the defendant would necessarily have waived his right to insist on the complete record coming into evidence.” Id. at 582 n.1 (emphasis supplied). Quite simply, in the footnote we clearly covered the situation present in this case where the defendant requested a redaction. Under these circumstances, redaction would be permitted.

We affirm, however, because we conclude that the error in failing to redact the driving record was harmless. The criminal violation on the driving record which Law sought to redact was one for fleeing and eluding. This case involved driving while intoxicated and driving while Law’s license was suspended. The central issue litigated was whether Law was driving the vehicle. One officer testified that he saw Law driving, while Law’s girlfriend who was in another vehicle testified that Law was the passenger in the vehicle. The fleeing and eluding conviction on the driving record would in no way influence the issue of witness credibility. The state never mentioned the conviction, and Law has not stated how this prejudiced him. We conclude that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Law raises two other issues, both of which are without merit. First, he claims that the trial court erred in denying his motion for mistrial when the officer made an inadvertent comment on his silence. In light of

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the trial court’s immediate curative instruction, the officer’s testimony was not so prejudicial as to deny appellant a fair trial. Cf. Herrera v. State, 879 So. 2d 38, 41 (Fla. 4th DCA 2004) (holding that trial court did not abuse its discretion in denying a motion for mistrial where an immediate curative instruction sufficiently cured the objectionable statement). Second, he argues that the trial court erred in admitting evidence regarding a “be on the lookout” (“BOLO”) to which the officers were responding when stopping appellant. The BOLO contained the description of the vehicle and no accusatory information. The court did not abuse its discretion in permitting the officers to refer to it as part of a logical sequence of events. See Collier v. State, 701 So. 2d 1197, 1198 (Fla. 3d DCA 1997).

For the foregoing reasons, we affirm Law’s convictions and sentences. Taylor and May, JJ., concur.

* * *Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert Belanger, Judge; L.T.

Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

Polen, J.

Appellant, Carlos Contreras-Mayahua, was charged by indictment with second-degree murder as to Adolfo Quiagua Acahua (Count I), and attempted second-degree murder as to Jose Florentino HernandezAmador (Count II) for events occurring on October 24, 2006. Following a jury trial, Contreras-Mayahua was convicted of the lesser included offenses of manslaughter (Count I) and aggravated battery (Count II). Contreras-Mayahua now appeals the trial court’s judgment adjudicating him guilty and sentencing him to two prison terms of fifteen years each to run consecutively.

Contreras-Mayahua raises several issues on appeal, but we write only to address whether fundamental error occurred in light of the trial court’s jury instruction on manslaughter by act as a lesser included offense of second-degree murder and the Florida Supreme Court’s recent decision in State v. Montgomery, 35 Fla. L. Weekly S204 (Fla. Apr. 8, 2010). In Montgomery, the court determined that the State is not required to prove that the defendant intended to kill the victim in order to prove manslaughter by act. Id. at *1. The court explained that requiring proof of intent as an element of manslaughter by act would “impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim.” Id. at *3. The court found that the instruction given in Montgomery’s case (which was identical to that given in the instant case) required the jury to find that the defendant intended to kill the victim in order to convict Montgomery of manslaughter. Id. at *3-*4.

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Finally, the court held that, in Montgomery’s case, the erroneous instruction amounted to fundamental error¹:

Because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena, fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill [the victim].

Id. at *6 (citing Pena v. State, 901 So. 2d 781, 787 (Fla. 2005)).

A close reading of Montgomery and Pena dictates that ContrerasMayahua’s judgment and sentence be affirmed. The court in both Montgomery² and Pena³ phrases the issue in terms of the defendant’s

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conviction and its relation to the lesser offense. Here, ContrerasMayahua’s conviction is the lesser offense of manslaughter.

Our holding is in keeping with the concern of the court in Montgomery -that a jury which has been instructed that intent is an element of manslaughter but not of second-degree murder, and which finds that the State has not shown intent, would necessarily convict the defendant of second-degree murder. In Montgomery, the defendant was convicted of second-degree murder. But here, despite the erroneous instruction, Contreras-Mayahua was convicted of the lesser offense of manslaughter. Therefore, the erroneous instruction could not have influenced the jury to the detriment of Contreras-Mayahua, and thus, could not have constituted fundamental error.

Affirmed.

Gerber and Levine, JJ., concur.

* * *Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T.

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^1. The Montgomery court engaged in fundamental error analysis because defense counsel did not contemporaneously object to the erroneous instruction. 35 Fla. L. Weekly S204 at *5. Defense counsel in the present case also failed to object to the contested instruction, and thus, this court must consider whether giving the erroneous instruction below rose to the level of fundamental error.

^2. The lesser included offense of manslaughter is just one step removed from second-degree murder. Because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena, fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.

Montgomery, 35 Fla. L. Weekly S204 at *6 (emphasis added).

^3. [W]hen the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.

In this case, Pena was charged with and convicted of first-degree murder. The jury verdict form also included the options of finding Pena guilty of second-degree murder, third-degree murder, or manslaughter. Beyond that, the jury could have found Pena guilty of a delivery charge or a possession charge or not guilty of any of the offenses listed. The lesser offense of manslaughter was three steps removed from the conviction of first-degree murder. Thus, because the lesser offense in this case was more than two steps removed from the conviction of first-degree murder, under Rojas and Abreau, the district court properly conducted a harmless error analysis.

Pena, 901 So. 2d at 787 (emphasis added).
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Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARINGPER CURIAM.

We withdraw our opinion issued on May 28, 2010, and substitute this opinion in its place. In light of this substituted opinion, we deny Appellant’s motion for rehearing, clarification, rehearing en banc, and certification.

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Appellant was convicted of trafficking cocaine and possession of marijuana with intent to deliver and sentenced to consecutive prison terms of 30 years for the trafficking offense and five years for the possession offense. In Williams v. State, 8 So. 3d 1266 (Fla. 1st DCA 2009), we affirmed Appellant’s convictions, but remanded for resentencing. On remand, the trial court sentenced Appellant to 20 years in prison for the trafficking offense and five years concurrent for the possession offense.

Appellant appealed and thereafter filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) in which he argued that his sentences are unconstitutional because, by virtue of section 893.101, Florida Statutes, his offenses are “strict liability offenses” for which the maximum sentences that can be imposed consistent with due process are no more than one year in jail. The trial court denied the motion on the grounds that Appellant’s claim was not a “sentencing error” that could be raised in a rule 3.800(b)(2) motion, and even if it was properly raised, the claim was without merit based upon Harris v. State, 932 So. 2d 551 (Fla. 1st DCA 2006), rev. denied, 962 So. 2d 336 (Fla. 2007). Appellant presents this same argument on appeal, and he also argues for the first time that section 893.101 and his convictions violate due process for the same reasons that his sentences are unconstitutional.

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Even if Appellant’s claims were properly preserved and are not procedurally barred for not having been raised in the first appeal, they are without merit. We rejected these same claims in Harris, ^* and our sister courts have also rejected these claims. See, e.g., Taylor v. State, 929 So. 2d 665 (Fla. 3d DCA 2006), rev. denied,

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952 So. 2d 1191 (Fla. 2007); Wright v. State, 920 So. 2d 21, 25 (Fla. 4th DCA 2005), rev. denied, 915 So. 2d 1198 (Fla. 2005); Burnette v. State, 901 So. 2d 925, 927-28 (Fla. 2d DCA 2005). Accordingly, we affirm Appellant’s convictions and sentences.

AFFIRMED.

WETHERELL and MARSTILLER, JJ., CONCUR; WEBSTER, J., CONCURS IN RESULT ONLY, WITH OPINION.

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WEBSTER, J., concurring in result only.

Appellant raises two issues in the alternative: (1) “whether the Florida statutes proscribing trafficking in cocaine and possession with intent to sell marijuana are facially unconstitutional (violate due process) insofar as they classify these strict liability offenses as felonies”; and (2) “whether the imposition of felony punishment for the strict liability offenses of trafficking in cocaine and possession with intent to sell marijuana violates due process.” I agree that these two issues are either procedurally barred because not raised on the prior appeal from his conviction or not properly preserved. However, for the reasons discussed below, I am unable to agree with the majority’s treatment of appellant’s lawyer. Accordingly, I concur in the result only.

The majority takes appellant’s lawyer to task for “argu[ing] an issue that has been consistently rejected by the courts without even acknowledging that the argument has been rejected.” Majority Opinion, at 3 n.*. In support, the majority identifies eleven cases from this court and three from other district courts of appeal which it says have rejected the same claims appellant makes here. I disagree.

Of course, Florida’s Rules of Professional Conduct require that a lawyer “disclose to [a] tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” R. Regulating Fla. Bar 4-3.3(3). Principles of professionalism

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would suggest the propriety of disclosing decisions of other coordinate courts that are on point, as well. However, it strikes me that a decision can constitute “authority” for a point of law only if it has precedential value. A per curiam decision with no written opinion has no precedential value. Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So. 2d 310, 311 (Fla. 1983). Of the eleven cases from this court relied on by the majority, ten are per curiam affirmances without opinion.

The final case from this court cited by the majority is Harris v. State, 932 So. 2d 551 (Fla. 1st DCA 2006), review denied, 962 So. 2d 336 (Fla. 2007). Although, apparently, there was more than one issue raised in Harris, see 932 So. 2d at 552, the only one identified is whether section 893.101, Florida Statutes (2004), violated the due process clauses of the federal and state constitutions because it “eliminate[d] knowledge of the illicit nature of a substance as an element of the offense.” Id. While this issue might have been based on an argument similar to one of those made here, it is certainly not clear that it was, particularly in light of the citations in the opinion to Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005), and Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005), two of the cases from other districts on which the majority here relies.

As I read the opinions in Wright and Burnette, the due process argument being made by the appellants in both cases was that section 893.101, Florida

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Statutes, was unconstitutional because it impermissibly shifted the burden of proof as to one of the elements. That is not one of the arguments being made here.

The final case relied on by the majority is Taylor v. State, 929 So. 2d 665 (Fla. 3d DCA 2006). That case merely holds that the failure of section 893.101 to require “knowledge of the unlawful nature of the offending substance as an element of the crime” does not render the statute unconstitutional, citing Wright and Burnette. Id. at 665. Again, that does not seem to me to be one of the arguments being made here.

Based on the foregoing analysis, I am unable to say that any of the cases relied on by the majority necessarily requires rejection of either of the issues raised by appellant’s lawyer in this case. Moreover, it strikes me that a lawyer defending a client in a criminal matter has special obligations. Among them, it seems to me, is a responsibility to attempt to obtain a ruling squarely addressing the issues raised, so that the lawyer may seek review by a higher court if unhappy with that ruling. When there are federal constitutional issues raised, that responsibility also extends to preserving arguments in courts like ours so that, if unfavorably resolved, they may be presented in federal collateral proceedings. Finally, as our Rules of Professional Conduct recognize, because “the law is not always clear and never is static…, in determining the proper scope of advocacy, account must be taken of

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the law’s ambiguities and potential for change.” R. Regulating Fla. Bar 4-3.1 (Comment).

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^*. Appellant’s counsel was also appellate counsel for the appellant in Harris. The initial brief in this case did not even mention Harris even though the trial court relied on that case in denying Appellant’s rule 3.800(b)(2) motion and the opinion in Harris rejected the argument that section 893.101 rendered the appellant’s convictions unconstitutional. See 932 So. 2d at 552. And, as Appellant’s counsel acknowledged for the first time in the motion for rehearing, “Appellant’s alternative argument (ISSUE II) that the sentences imposed for the offenses of convictions were unconstitutional… was indeed raised in Harris” (emphasis in original). This directly contradicts what Appellant’s counsel argued in the briefs, as well as what he argued to the trial court in connection with the rule 3.800(b)(2) motion where he stated that Harris “has no bearing” on the argument that Appellant’s sentences are unconstitutional because the opinion only addressed the constitutionality of the appellant’s convictions. Thus, although Appellant’s counsel asserted that our opinion in Harris was “ambiguous and poorly written,” the opinion could not have been more clear in its rejection of the arguments raised in this case. See 932 So. 2d at 552 (“We affirm all issues raised on appeal.”). We have also rejected these same arguments made by Appellant’s counsel in numerous other cases subsequent to Harris. See, e.g., Henry v. State, 29 So. 3d 294 (Fla. 1st DCA 2010) (table); Pugh v. State, 25 So. 3d 563 (Fla. 1st DCA 2010) (table); Knox v. State, 25 So. 3d 563 (Fla. 1st DCA 2010) (table); Schofield v. State, 993 So. 2d 968 (Fla. 1st DCA 2008) (table); Rasheed v. State, 992 So. 2d 258 (Fla. 1st DCA 2008) (table); Robinson v. State, 969 So. 2d 1023 (Fla. 1st DCA 2007) (table); Sanders v. State, 965 So. 2d 128 (Fla. 1st DCA 2007) (table); Canty v. State, 954 So. 2d 1158 (Fla. 1st DCA 2007) (table); Davis v. State, 944 So. 2d 351 (Fla. 1st DCA 2006) (table); Williams v. State, 940 So. 2d 1172 (Fla. 1st DCA 2006) (table). It is one thing for counsel to argue for a change in the law in the face of these adverse decisions or for counsel to simply preserve an issue for purposes of subsequent review; but, it is an entirely different thing to continue to argue an issue that has been consistently rejected by the courts without even acknowledging that the argument has been rejected, which is what Appellant’s counsel did in this case.
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David L. McGee of Beggs & Lane RLLP, Pensacola, for Appellant.

Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant challenges his conviction for aggravated battery with a deadly weapon on several grounds. In his first issue, appellant alleges the trial court erred in allowing the State to amend his charging information following the close of the State’s case. We agree and reverse.

Appellant was originally charged with attempted second degree murder and the charging information alleged he:

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did unlawfully and [sic] perpetrated by an act imminently dangerous another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect to death of any particular individual, did attempt to kill and murder [the victim], a human being, by BEATING [the victim] WITH A BAT, CINDER BLOCKS AND HIS HANDS…

Following the close of the State’s case and the presentation of the first defense witness, the trial court held a charge conference. During the conference, the State requested for the first time that the lesser included offense of aggravated battery with a deadly weapon be added to the verdict form. Defense counsel vehemently opposed the inclusion of the lesser, alleging all necessary elements of the lesser had not been included in the original charge, namely, the element requiring the State prove the use of a deadly weapon.

The trial court recognized the error, and instead of prohibiting the inclusion of the lesser, the court invited the State to amend the charging information prior to jury deliberation to add the necessary element of “with a deadly weapon.” The State amended the information, adding not only the deadly weapon language but further including “hands and feet” as possible deadly weapons.

On appeal, appellant asserts he was prejudiced by this late in trial amendment. We agree. While a trial court’s ruling on a motion to amend the information is reviewed for an abuse of discretion, it is well settled that the State may not amend an information during trial if the amendment prejudices the defendant. State v. Erickson, 852 So. 2d 289, 291 (Fla. 5th DCA 2003); Lackos v.

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State, 339 So. 2d 217 (Fla. 1976). It is likewise clear the changing or adding of an offense in an information is a substantive change evoking prejudice and requiring a continuance. Peevey v. State, 820 So. 2d 422 (Fla. 4th DCA 2002). Further, an amendment that substantively alters the elements of the crime charged is per se prejudicial. Toussaint v. State, 755 So. 2d 170, 172 (Fla. 4th DCA 2000).

Here, the addition of the “deadly weapon” language prejudiced appellant and requires reversal. Specifically, the State’s only reason for including the language was to provide support for the charging of the lesser included offense of aggravated battery with a deadly weapon, which would have been prohibited absent the amendment. See Lane v. State, 861 So. 2d 451 (Fla. 4th DCA 2003) (holding that, while aggravated battery may be a permissive lesser included offense of attempted murder depending on the “allegations in the information,” it may not be included on the verdict form if the information does not allege one of the necessary aggravators). Recognizing the mistake that was made (and perhaps the very real possibility that it had not meet its burden on the attempted second degree murder charge), the State accepted the trial court’s imprudent invitation to amend the information and added the necessary aggravator.

However, in doing so, the State and the trial court prejudiced appellant in two ways. First, appellant stated on record he chose to move forward on the sole charge of attempted murder because he believed the State had not meet its burden

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and the jury would acquit him rather than convict him of the heightened offense. While risky, this was not an unsound gamble given the evidence presented at trial and the sentencing exposures in both offenses.

Second, in adding the language late in the trial, the State foreclosed appellant’s ability to question witnesses in support of its argument that the alleged materials (hands, feet, cinder blocks, and a bat) were not deadly weapons. Thus, the late in trial amendment to the information prejudiced appellant in two distinct ways and should not have been permitted.

Accordingly, we reverse. In reversing, we further find merit in appellant’s second issue alleging hands and feet may not support the jury’s finding of a deadly weapon without evidence suggesting special training. Dixon v. State, 603 So. 2d 570, 571 (Fla. 5th DCA 1992); Severance v. State, 972 So. 2d 931, 933 (Fla. 4th DCA 2007). Thus, we reverse with directions that appellant’s conviction and sentence for aggravated battery be stricken and a conviction for simple battery be imposed followed by resentencing. Dixon, 603 So. 2d at 571; D.B.B. v. State, 997 So. 2d 484 (Fla. 2d DCA 2008); E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989).

REVERSED.

Nancy A. Daniels, Public Defender and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Tallahassee; and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

An appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge.

WETHERELL, J.

Appellant raises two issues in this direct appeal of his convictions and sentences for attempted second-degree murder and aggravated assault of a law enforcement officer: 1) that the trial court erred in excluding testimony of his state

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of mind prior to the offense; and 2) that, based upon the reasoning in Montgomery¹ the trial court committed fundamental error in instructing the jury on the lesser included offense of attempted voluntary manslaughter. We affirm the first issue without further comment, and we affirm the second issue for the reasons that follow.

In Montgomery, the supreme court held that the standard jury instruction for manslaughter by act was fundamentally erroneous because it required the state to prove that the defendant “intentionally caused the death of (victim)” even though intent to kill was not an element of the offense. 35 Fla. L. Weekly at S205. In Rushing v. State, No. 1D09-3708 (Fla. 1st DCA June 21, 2010), we concluded that the standard jury instruction for attempted voluntary manslaughter “suffers from the same infirmities as the instruction in Montgomery.” See also Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009) (holding that the trial court committed fundamental error by giving the standard jury instruction for attempted manslaughter by act).

Rushing and Lamb are distinguishable from this case. The standard jury instruction, which was given in those cases, required the state to prove that the defendant “committed an act… which was intended to cause the death of (victim) and would have resulted in the death of (victim) except that someone prevented

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defendant from killing (victim) or [he] [she] failed to do so.” Fla. Std. Jury Instr. (Crim.) 6.6 (emphasis supplied). The emphasized language, which is nearly identical to the instruction in Montgomery, was not part of the instructions given in this case. Rather, the jury was instructed that the state was only required to prove that the defendant committed an act “which would have resulted in the death of [the victim] except that someone prevented [Appellant] from killing [the victim] or he failed to do so.” Thus, unlike the instruction given in Rushing and Lamb, the instruction in this case did not require proof of an intent to kill for a conviction of the lesser included offense of attempted voluntary manslaughter.

The jury in this case was also instructed that “it is not necessary for the State to prove the defendant had a premeditated intent to cause death.” This portion of the instruction should not have been given because Appellant was not charged with first-degree murder. See In re Standard Jury Instructions in Criminal Cases (93-1), 636 So. 2d 502, 506 (Fla. 1994) (stating that this portion of the instruction should be given when attempted voluntary manslaughter is being defined as a lesser included offense of attempted first-degree premeditated murder). However, the inclusion of this language does not constitute fundamental error because this language is a correct statement of the law and because it does not affirmatively instruct the jury that an intent to kill is necessary for attempted voluntary manslaughter. Although it has been noted that this language in the manslaughter

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instruction “indicates…[²] that an intent to cause death (although not premeditated intent) must be proven,” Leggett v. State, 35 Fla. L. Weekly D548 (Fla. 3d DCA Mar. 10, 2010) (Cope, J., specially concurring), we conclude that the language, standing alone, does not render the instruction as a whole fundamentally erroneous. See Pensacola Electric Co. v. Bissett, 52 So. 367, 370 (Fla. 1910) (“In determining the correctness of charges and instructions, they should be considered as a whole, and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.”). Indeed, even with this language, we conclude that it is unlikely that the average juror would have interpreted the instruction given in this case to require proof of an intent to kill in order to find Appellant guilty of attempted voluntary manslaughter. Thus, unlike the juries in Rushing and Lamb, the jury in this case was not precluded from finding Appellant guilty of the lesser included offense of attempted voluntary manslaughter even though it determined that he did not intend to kill the victim.

In sum, we conclude that the trial court properly instructed the jury on attempted voluntary manslaughter, and any error resulting from the trial court’s

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instruction that “it is not necessary for the State to prove the defendant had a premeditated intent to cause death” does not constitute fundamental error. Accordingly, we affirm Appellant’s convictions and sentences.

AFFIRMED.

WEBSTER, and MARSTILLER, JJ., CONCUR.

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^1. State v. Montgomery, 35 Fla. L. Weekly S204 (Fla. Apr. 8, 2010), approving, Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009).

^2. The full quote was that this language indicated “for a second time” that an intent to cause death must be shown. 35 Fla. L. Weekly at D548. The first time was the affirmative instruction that the state must prove that the defendant “intentionally caused the death of [the victim].” Id. No such instruction was given in this case, which minimizes any potential confusion resulting from the premeditated intent language.
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Edward T. Bauer of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee.

An appeal from the Circuit Court for Gadsden County.Kathleen F. Dekker, Judge.

PER CURIAM.

ON MOTION FOR REHEARING AND/OR CLARIFICATIONWe grant the State’s Motion for Rehearing and/or Clarification, withdraw our previous opinion, and substitute the following opinion in its place.

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Appellant seeks review of his conviction and sentence for trafficking in cocaine. He alleges that the trial court erred in denying his motion for judgment of acquittal in light of the State’s failure to prove that he was in constructive possession of the drugs. In order to prove constructive possession, the State was required to prove that Appellant knew of the presence of the contraband and was able to exercise dominion and control over it. Taylor v. State, 13 So. 3d 77, 80 (Fla. 1st DCA 2009) (citing § 893.101(1)-(2), Fla. Stat. (2006)); Links v. State, 927 So. 2d 241, 243 (Fla. 2d DCA 2006) (citing Diaz v. State, 884 So. 2d 387 (Fla. 2d DCA 2004)). We agree that the State failed to meet its burden of proof in regards to Appellant’s knowledge of the presence of the cocaine. Accordingly, the trial court erred in denying Appellant’s motion for judgment of acquittal. The conviction is REVERSED and the case is REMANDED to the trial court with directions to discharge Appellant.

DAVIS, CLARK and WETHERELL, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Polk County; Michael E. Raiden, Judge.

WALLACE, Judge.

Lindsay Kezal challenges the sentences imposed on her following her no contest plea to the charges of DUI manslaughter, section 316.193(3)(c)(3), Florida

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Statutes (2005), and DUI with serious bodily injury to another, section 316.193(3)(c)(2). She argues that the circuit court erred in determining that it could not consider the mitigating factors listed at subsections (2)(c) and (2)(j) of section 921.0026, Florida Statutes (2005), with respect to her request for a downward departure because her offenses involved driving under the influence. We agree with Ms. Kezal’s argument in part. Based on the controlling authority of State v. VanBebber, 848 So. 2d 1046 (Fla. 2003), we vacate Ms. Kezal’s sentences and remand for the circuit court to consider the factors outlined in subsection (2)(j) in determining her sentences.

The analytical framework a trial court must follow in considering a request for a downward departure from the sentencing guidelines is well established:

“A trial court’s decision whether to depart from the guidelines is a two-part process.” Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999). The trial court must first determine whether it can depart whether the defendant has met the burden of establishing sufficient factual support for a valid legal ground. “This aspect of the court’s decision to depart 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 its ruling.” Id. at 1068. The trial court must then decide whether it should depart “a judgment call within the sound discretion of the court.” Id

State v. Green, 890 So. 2d 1283, 1286 (Fla. 2d DCA 2005). If the trial court mistakenly believes that it legally does not have the discretion to depart and the reviewing court is unable to determine whether the trial court would have imposed the same sentence if it had understood its discretion, then the sentence imposed must be vacated and the case remanded for resentencing. See Torres v. State, 17 So. 3d 1282, 1282-83 (Fla. 2d DCA 2009) (citing Hines v. State, 817 So. 2d 964, 965 (Fla. 2d DCA 2002)).

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Here, Ms. Kezal argues that the circuit court mistakenly determined that it did not have the discretion to impose a departure sentence under subsections (2)(c) and (2)(j) because Ms. Kezal’s offenses involved driving under the influence. Section 921.0026 provides in pertinent part, as follows:

This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.

(1) 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). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.

(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:

….

(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.

….

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

(3) The defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.

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(Emphasis added.)

In State v. VanBebber, 848 So. 2d 1046, 1049 (Fla. 2003), the Supreme Court of Florida specifically determined that subsection (2)(j) is available to support a downward departure from a guidelines sentence for a felony DUI conviction, stating:

Section 921.0026 plainly states, “This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.” Because the mitigator in section 921.0026(2)(j) applies to any felony offense, except any capital felony, committed on or after October 1, 1998, it is available to support a downward departure from a felony DUI conviction. The fact that the Legislature specifically exempted only capital felonies is further support for the conclusion that section 921.0026(2)(j) applies to felony DUI convictions.

(Footnotes omitted.)

In VanBebber, the State argued that applying subsection (2)(j) to felony DUI convictions conflicted with subsection (3), which prohibits a downward departure based upon the defendant’s “substance abuse or addiction, including intoxication at the time of the offense.”]d at 1050 (quoting § 921.0026(3)). But the supreme court found that there was no conflict. It said:

Under subsection (3), intoxication at the time of the offense cannot be used as a mitigating factor to support a downward departure from a sentence under the sentencing guidelines. There is no prohibition, however, against using the mitigators listed in section 921.0026(2) in cases where the offense is intoxication. In this case the trial court imposed a downward departure on the fact that VanBebber was remorseful for an isolated incident committed in an unsophisticated manner. Again, if the Legislature intended to specifically exempt felony DUI offenses from this statutory scheme this Court must presume that it would have explicitly done so in the statute.

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Id. So the supreme court’s holding in VanBebber establishes that subsection (2)(j) provides a valid basis for a departure in a felony DUI case. Also, the court’s reasoning supports the conclusion that subsection (2)(c) would be available to support a downward departure from a guidelines sentence from a felony DUI conviction. As the supreme court noted, section 921.0026 applies to any felony offense except a capital felony. If a trial court has discretion to depart upon proof of the circumstances set forth in subsection (2)(j) with respect to a felony DUI offense, then it must have the discretion to depart upon proof of the circumstances outlined in subsection (2)(c) with respect to a felony DUI offense.

We now turn to the circuit court’s application of subsections (2)(c) and (2)(j) in sentencing Ms. Kezal in this case. In considering subsection (2)(j), the circuit court found that Ms. Kezal had shown remorse. The circuit court also found that the incident was isolated because Ms. Kezal did not have any prior offenses. But the circuit court was troubled by the third requirement of subsection (2)(j) whether the offense was committed in an unsophisticated manner. With respect to that requirement, the circuit court stated:

Now, the problem with applying it to DUI manslaughter is that DUI is never an intentional offense. I mean, they don’t mean to kill anybody, and if they did they would be charged with murder….

But being intoxicated or impaired means your judgment is impaired. In other words, the judgment that we all employ in our daily lives that keeps us out of trouble, for the most part, and I better not do that because of the consequences, that’s impaired. So you could almost make the point that every DUI manslaughter is unsophisticated because they don’t mean to do it….

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How does it how do you avoid saying that every DUI manslaughter is unsophisticated?

….

What I’m struggling with here though is the fact that the offense is almost inherently unsophisticated. I mean, nobody sets out to do this. Nobody sets out to get drugged up or drunk and kill somebody. Again and if they did they’d be charged with murder.

(Emphasis added.) When the circuit court announced its sentencing decision, it stated further:

And as to the part about unsophisticated manner, I think Mr. not Mr. Coleman [the assistant state attorney]. think my own interpretation is the closest to being correct. Other than the fact that it’s an inherently unsophisticated offense, if the legislature really felt that then they’d reduce the penalty for DUI manslaughter. I find no basis to depart downward from the sentencing guidelines.

(Emphasis added.) The foregoing comments reflect that the circuit court incorrectly concluded that it could not depart under subsection (2)(j) for an offense involving a DUI because every DUI offense is inherently unsophisticated.¹

We are unable to determine from our review of the record whether the circuit court would have imposed the same sentences if it had understood that it had the discretion to depart under subsection (2)(j) upon proof of each element of that subsection. See Torres, 17 So. 3d at 1282-83; Hines v. State, 817 So. 2d 946, 965-66 (Fla. 2d DCA 2002). For this reason, we vacate Ms. Kezal’s sentences and remand for resentencing. Upon resentencing, the circuit court must consider subsection (2)(j) as a possible basis for a departure sentence.

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We reach a different conclusion with respect to Ms. Kezal’s argument that the circuit court improperly concluded that subsection (2)(c) the defendant’s capacity to appreciate the criminal nature of the conduct could not provide a valid basis for departure. Ms. Kezal’s argument on this factor was based on evidence that at the time of the accident that led to the charges, she was involved in an abusive relationship. The circuit court’s comments at the sentencing hearing demonstrate that although it may have improperly concluded that subsection (2)(c) could not apply in a DUI case, it also rejected Ms. Kezal’s abusive relationship argument as a basis for establishing diminished capacity. Because the court’s remarks make it clear that it would have not exercised its discretion to depart under the facts of this case based on diminished capacity, we find no reversible error with respect to the circuit court’s handling of the request for departure based on subsection (2)(c). See Torres, 17 So. 3d at 1282-83.

As a result of our conclusion that the circuit court incorrectly determined that subsection (2)(j) could not provide a valid basis for departure in the context of a felony DUI case, we vacate Ms. Kezal’s sentences and remand for the circuit court to consider that factor as a possible basis for departure when it resentences Ms. Kezal. We affirm the judgment.

Judgment affirmed, sentences vacated, and case remanded.

CRENSHAW, J., Concurs.

VILLANTI, J., Concurs specially in part and dissents in part with opinion.

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VILLANTI, Judge, Concurring specially in part and dissenting in part.

I fully concur in the majority’s decision to affirm the denial of a downward departure sentence pursuant to section 921.0026(2)(c). However, I respectfully dissent as to the portion of the opinion reversing Kezal’s sentence and remanding for reconsideration of the departure reason listed in subsection (2)(j) because I believe the majority misreads the trial court’s ruling on the applicability of that section. From my reading of the transcript of the entire sentencing hearing, I believe it is clear that the trial court understood that it had the authority to depart under subsection (2)(j) but found that Kezal had failed to prove that she committed her offenses in an unsophisticated manner. Accordingly, I would affirm.

This case involves a tragic situation in which Kezal, while driving under the influence of multiple drugs, drove through an intersection and collided with another car, killing her own four-year-old daughter and severely injuring the driver of the other car. A post-accident drug test showed that Kezal had methamphetamine, amphetamine, oxazepam, cannabis, and cocaine in her system at the time of the accident. These drugs, rather than the more traditional alcohol, formed the basis of the DUI charges at issue in this case.

After Kezal pleaded guilty to two of the three charges against her, the court held a sentencing and departure hearing. The court accepted Kezal’s guilty plea, heard testimony from several individuals, and then turned to Kezal’s request for a downward departure from the minimum sentence of 145.5 months under the Criminal Punishment Code. After rejecting the other possible statutory departure reasons, the court addressed subsection (2)(j), which permits a downward departure from the

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minimum sentence if the defendant has committed the offense in an unsophisticated manner and shown remorse and if the offense is an isolated incident.

The court first announced that it had no problem finding that Kezal had shown remorse and that the offense was an isolated incident. Turning to the unsophisticated manner element, the court asked Kezal’s counsel, “what exactly does that mean in this context?” Counsel’s response was that the court should look to “a pattern of conduct” by the defendant to determine whether the offense was committed in an “unsophisticated manner.” When the court pointed out that a pattern of conduct would determine whether the offense was an isolated one, not an unsophisticated one, defense counsel argued that it should be considered as to both and added that the court should also consider the “level of planning” that went into the offense in determining the “unsophisticated” element. In response, the State pointed out that Kezal had used drugs in the past and knew their effects on her body and mind. Nevertheless, she got in the car with her four-year-old daughter and drove to McDonald’s to get dinner. The State’s implication was that the incident involved either a degree of knowledge of the risk associated with driving under the influence of these illicit drugs or a callous disregard for the safety of others. In either event, it could not be said the offense was committed in an “unsophisticated manner”; only that the offense itself could be considered unsophisticated.

After considering these arguments, the court rejected Kezal’s claim for a downward departure sentence under subsection (2)(j). Contrary to facts stated in the majority’s opinion, the court did not find that Kezal had committed the offense in an unsophisticated manner. Instead, the court stated that it believed that DUI

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manslaughter was an “inherently unsophisticated offense” because “nobody sets out to do this.” It then denied Kezal’s request for a downward departure and sentenced her to the minimum sentence permissible under the Code.

A fair reading of the transcript of the entire sentencing hearing leads me to believe that the trial court fully understood that it had the authority to depart downward under subsection (2)(j) if Kezal could convince the court that she committed the DUI manslaughter offense in an unsophisticated manner. It is clear that the trial court’s position was that it was not enough for Kezal to simply admit that she had committed an inherently unsophisticated offense. If that were the case, as the court noted, this departure reason would apply to every first DUI manslaughter conviction. Instead, the trial court’s position was that Kezal was required to prove that something specific about the way she committed the offense at issue demonstrated that she had committed it in an unsophisticated manner, i.e., that there was some articulable way in which her offense was committed in a more artless, more simple, and less refined manner than other first-time DUI manslaughter offenses. See State v. Alonso, 31 So. 3d 265, 267 (Fla. 4th DCA 2010) (citing State v. Merritt, 714 So. 2d 1153, 1154 n.3 (Fla. 5th DCA 1998), to define the term “unsophisticated” as “artless, simple and not refined”). When Kezal failed to do this, the trial court rejected her request for a downward departure.

The majority’s conclusion that the court expressed its view that it did not have the legal authority to depart is not supported by the transcript. It is abundantly clear to me from the transcript of the entire sentencing hearing that the trial court fully understood its options and simply did not find a departure sentence appropriate for Kezal on any statutory ground. See Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999)

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(holding that if there is a legal basis for departure, the trial court must then “determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case” and that this decision “is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion”). In my view, the transcript clearly demonstrates that the court recognized its authority to depart downward and elected not to exercise its discretion to do so. I can, therefore, find no error or abuse of discretion in either Kezal’s sentence or the sentencing process. Hence, I would affirm her sentences in all respects.

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^1. In fairness to the circuit court judge, we note that neither defense counsel nor the prosecutor called the VanBebber case to his attention.
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