Florida/Georgia Personal Injury & Workers Compensation

...herefore it is applicable to Rife. The Legislature amended the sentencing statute applicable to felonies committed on or after October 1, 1998. See ch. 97-194, Laws of Fla. (creating the Florida Criminal Punishment Code, codified at sections 921.002-921.0026, Florida Statutes (1997)); see also § 921.0027, Fla. Stat. (1999). Section 921.0026(2)(f), Florida Statutes (1999), provides for the same mitigating circumstance as provided by section 921.0016(4)(f), where "[t]he victim was an initiator, willing participant, aggressor, or provoker of the incident."

...The State's objection made clear that the State sought imposition of a nondeparture sentence because there was no legal reason justifying a downward departure. We therefore turn to an evaluation of the merits of the State's claim that there was no legal basis for the downward departure sentence. Section 921.0026(1), Florida Statutes (2003), provides that a sentence less severe than the lowest permissible sentence shown on the Criminal Punishment Code scoresheet "is prohibited unless there are circumstances or factors that reasonably *945 justify the downward departure." See also § 921.00265(1). Section 921.0026(2), which sets forth a nonexclusive list of such mitigating circumstances, provides in pertinent part: "Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include......

...section 921.002(3), "[t]he level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence" and any downward departure sentence "must be explained in writing by the trial court judge." See also § 921.00265(2). Here, although the trial court failed to explain in writing the reason for the downward departure, the transcript of the sentencing hearing makes clear that the trial court relied on the mitigating circumstance set forth in section 921.0026(2)(j) as the basis for imposing a downward departure. The transcript makes equally clear that the trial court's reliance on that mitigating circumstance was unwarranted. Three elements must be shown to establish the existence of the mitigating circumstance listed in section 921.0026(2)(j): (a) the offense must have been "committed in an unsophisticated manner," (b) the offense must have been "an isolated incident," and (c) the defendant must have "shown remorse" for the offense....

...The fact that a defendant who has previously committed numerous offenses has not in the past committed the same crime as the offense for which he is being sentenced does not mean that the current offense is "an isolated incident." See id. Although the trial court made reference to two of the elements in section 921.0026(2)(j) in the court's attempt to articulate an appropriate basis for the downward departure, the entirety of the trial court's comments shows that the underlying basis for the decision to impose a departure sentence was the trial cour...

...da's Criminal Punishment Code. Cf. Fla. R.Crim. P. 3.704(d)(27) (authorizing the trial judge to depart downward for permissible reasons when memorialized in a contemporaneous writing, and referring to a non-exhaustive justification list appearing in section 921.0026(2), Florida Statutes)....

...Although Lee’s Criminal Punishment Code scoresheet provided for a minimum permissible sentence of forty-five 'months’ imprisonment, the trial court was free to impose up to the statutory maximum on each count and to run the sentences consecutively. §§ 921.00265(1), 921.16(1), Fla....

...The trial court relied on the statutory mitigating factor that Lee “requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla....

...The trial court also relied on the following non-statutory mitigating factors: Lee’s ability to be rehabilitated, his contribution to the community, his employment history, his family background, and his lack of criminal history. a. Statutory Mitigator Section 921.0026(2)(d) allows for a departure sentence when a defendant proves by a preponderance of the evidence: (1) he has a mental disorder unrelated to substance abuse or addiction or a physical disability; (2) his disorder or disability requires specialized treatment; and (3) he is amenable to treatment....

...nd all claims, demands, damages, actions, including all past, present and future claims for subrogation arising out of the above referenced accident. [4] Both of these findings are valid reasons for imposing a downward departure sentence pursuant to section 921.0026, Florida Statutes (1999)....

...to impose a downward departure sentence of probation. [10] A victim's need for restitution is a valid reason for a downward departure sentence only if competent, substantial evidence shows the victim's need outweighs the need for incarceration. See § 921.0026(2)(e), Fla....

...se program, and Trooper Ports, the victim of the aggravated assault charge. Despite the focus on Schillaci's drug addiction, the judge and counsel recognized that this was no longer a valid reason for imposition of a downward departure sentence. See § 921.0026(3), Fla....

...With respect to the second step, the trial court is afforded considerable discretion and the judge's call will be overturned only where there has been an abuse of that discretion. Step 1 Clearly, the reason cited—the need for restitution to the victim—is a valid one. See § 921.0026(2)(e), Fla....

...Discretion is abused only where no reasonable person would agree with the trial court's decision." Id. An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure. See § 921.002(3), Fla. Stat. (1999). Section 921.0026, Florida Statutes (1999), sets out a list of mitigating grounds for sentencing departures. Specifically, section 921.0026 provides, in pertinent part, as follows: (1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...rison sentence. * * * (i) The defendant cooperated with the state to resolve the current offense or any other offense. (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026, Fla. Stat. (1999). The list of statutory departure reasons is not exclusive, so departures based on reasons not delineated in section 921.0026, which are supported by the record, may be permissible....

...)(b), Fla. Stat. (1999). REMORSE Turning now to the grounds utilized by the trial court for departure, we first discuss Appellees' remorse as a basis for departure. While it is true that at sentencing each Appellee expressed remorse for his conduct, section 921.0026(2)(j), Florida Statutes (1999), requires, in addition to remorse, that the crime be committed in an unsophisticated manner, and constitute an isolated incident....

...No evidence was presented regarding these requirements. To the contrary, the record clearly indicates that the crimes were committed in a sophisticated manner and were not isolated incidents. Simply saying "I'm sorry" at sentencing is not enough to satisfy the requirements of section 921.0026(2)(j)....

...Laroe was a fugitive until this morning." The record contains no competent substantial evidence that Appellees persuaded Laroe to surrender or otherwise cooperated with the State to resolve the instant offenses or any other offenses. *127 NEED FOR RESTITUTION Section 921.0026(2)(e) allows the court to impose a downward departure sentence if the need for restitution to the victim outweighs the need for a prison sentence....

...JONES'S MEDICAL CONDITION Finally, the trial court considered Jones's medical condition as a basis for downward departure. Jones introduced medical records showing that he had surgery for an aneurysm in 1990. As a result, he suffers from seizures and takes medication on a regular basis. While section 921.0026(1)(d) allows the court to depart downward if a defendant requires specialized treatment for a mental or physical disability, there was no evidence presented showing that Jones required specialized treatment for his condition, or that...

...The court does find that he qualifies as a habitual felony offender and I am going to enter the order finding that he qualifies as a habitual felony offender. I am going to find that he does not—it is not necessary to protect the public in this case to sentence him as a HFO. I'm instead going to downward depart under 921.0026....

...n abuse of discretion. Discretion is abused only where no reasonable person would agree with the trial court's decision." Id. An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure. Section 921.0026(1) and (2)(j), Florida Statutes (2006), which governs mitigating circumstances justifying a downward departure from the lowest permissible sentence, provides in relevant part: (1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...asonably justified include, but are not limited to: . . . (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. However, the list of statutory departure reasons provided in section 921.0026(2) is not exclusive. State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999). Therefore, the trial court may impose a downward departure for reasons not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited....

...Here, the trial court gave three reasons for downward departure: Mr. Stephenson's remorse, his family support obligations, and the fact that he had "kept his nose clean" since being released from prison in 2004. The first reason, remorse, is specifically authorized under section 921.0026(2)(j), Florida Statutes. However, section 921.0026(2)(j) requires, in addition to remorse, that the crime be committed in an unsophisticated manner and constitute an isolated incident....

...Further, the record contains no competent, substantial evidence that would support a finding that the charged offense was committed in an unsophisticated and isolated manner. See Tyrrell, 807 So.2d at 126 ("Simply saying `I'm sorry' at sentencing is not enough to satisfy the requirements of section 921.0026(2)(j)."). Therefore, a downward departure under section 921.0026(2)(j) was unjustified....

...outside the sentencing guidelines. The State argues, however, that the Legislature implicitly repealed section 948.01(13) through changes made in 1997 to Florida's sentencing guidelines. See ch. 97-194, Laws of Fla. Specifically, the State points to section 921.0026(3), Florida Statutes (Supp.1998), which prohibits the use of a defendant's substance abuse or addiction as a reason for downward departure from the sentencing guidelines....

...Instead, we are obligated "to adopt an interpretation that harmonizes two related, if conflicting, statutes while giving effect to both." Id. The sentencing guidelines and section 948.01(13) may be so harmonized by recognizing that one is general, whereas the other is specific. The sentencing guidelines as set forth in section 921.0026 apply broadly to all felonies and provide for general sentencing guidelines....

...on Crime and Punishment CS/HB 241 (1997) Final Bill Research and Economic Impact Statement (June 4, 1997). However, the legislative analysis for the 1998 changes to the sentencing guidelines does not list section 948.01(13) as one of the statutes affected by the enacting bill. See id. [1] Although the enactment of section 921.0026(3) may indicate that the Legislature intended to limit the ability of trial courts to impose a downward departure from the sentencing guidelines solely on the basis of drug addiction, there is no question that section 948.01(13), as...

...e. See ch. 97-194, Laws of Fla. The Code applies to all felonies, except capital felonies, committed on or after October 1, 1998. See § 921.0027, Fla. Stat. (1997). The crime in this case occurred February 21, 1999; thus, the Code provisions apply. Section 921.00265(1), Florida Statutes (Supp.1998), provides that the lowest permissible sentence is presumed to be the lowest possible sentence required by the *28 sentencing points. Subsection (2) of that statute states that a trial court may depart from the lowest sentence; however, the trial court must supply written reasons for the departure. Section 921.0026(1), Florida Statutes (Supp.1998), prohibits a downward departure unless there is a mitigating circumstance described in subsection (2)....

...[6] Former section 921.0016(4)(d), Florida Statutes (Supp.1996), repealed by 97-194, § 1, at 3674, Laws of Fla., provided that addiction was a valid departure reason. However, the Legislature removed addiction as a valid ground for downward departure. See ch. 97-194, § 41, at 3728, Laws of Fla. (codified as section 921.0026(3)); State v....

...2d DCA 2000) ("A defendant's drug addiction and amenability to rehabilitation are no longer valid reasons for a downward departure from sentencing guidelines."); State v. Norris, 724 So.2d 630 (Fla. 5th DCA 1998) (drug addition is no longer valid reason for downward departure sentence); see also § 921.0026(3), Fla. Stat. (Supp.1998). [7] The Legislature was very explicit that substance abuse or addiction was not a valid reason for departure. Section 921.0026(3), Florida Statutes (Supp.1998), provides: 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....

...On October 4, 2001, the trial court sentenced Staffney to a downward departure sentence of four years, with 187 days credit for time served, to be followed by three years sexual offender probation. The trial court found that Staffney qualified for a downward departure sentence based on section 921.0026(2)(j), Florida Statutes (2001)....

...e forty eight months imprisonment followed by thirty six months probation. As this sentence is less than the lowest permissible sentence set forth in the Criminal Punishment Code's Sentencing Guidelines, [1] the sentence is a downward departure. See § 921.00265(2), Fla....

...State, 732 So.2d 1065 (Fla.1999); State v. Fleming, 751 So.2d 620 (Fla. 4th DCA 1999). A departure sentence may be imposed where the trial court finds that the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla....

...Finally, the trial court found that the offense was an isolated incident. Even though Staffney had no prior history of committing a sexual battery or any other type of sexually related offense, there must be substantial competent evidence to support all three factors in order to downwardly depart pursuant to section 921.0026(2)(j), Florida Statutes (2001)....

...ideline sentence. WARNER, J., concurs. GROSS, J., concurs in result only. NOTES [1] The defendant's sentencing scoresheet reflects a guideline sentence of 106.2 months to 180 months. [2] The trial court failed to make written findings as required by section 921.00265(2), Florida Statutes (2001)....

...d by the legislature. § 921.002(1), Fla. Stat. (2003); State v. Ayers, 901 So.2d 942, 946 (Fla. 2d DCA 2005). Ordinarily, the lowest permissible guideline sentence is "assumed to be the lowest appropriate sentence for the offender being sentenced." § 921.00265(1); Mann, 866 So.2d at 181. A downward departure is prohibited unless circumstances reasonably justify the departure, which must be articulated in writing. § 921.0026(1); 921.002(1)(f); Mann, 866 So.2d at 181, 183; Ayers, 901 So.2d at 944-45; Staffney v....

...Mann, 866 So.2d at 181; Staffney, 826 So.2d at 511. UNSOPHISTICATION AS A REASON FOR DEPARTURE A valid basis for departure exists where "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j); Mann, 866 So.2d at 182; Thompson, 844 So.2d at 815; Ayers, 901 So.2d at 945; Staffney, 826 So.2d at 511....

...Munro, 903 So.2d 381, 382 (Fla. 2d DCA 2005); Staffney, 826 So.2d at 511-12. However, " intoxication at the time of the offense is not a mitigating factor . . . and does not, under any circumstances, justify a downward departure from the permissible sentencing range." § 921.0026(3) (emphasis added); Thompson, 844 So.2d at 815. The trial court did not explain the departure in writing, but the transcript shows that the court relied on the "unsophisticated manner" language in section 921.0026(2)(j)....

...uch as he was inebriated . . . [a]nd that's why I detail it as being somewhat clumsy in the approach and what transpired." This contravened the plain language of the statute, which forbids the use of intoxication to justify a downward departure. See § 921.0026(3); Thompson, 844 So.2d at 815....

...e imposition of sentences in criminal cases involving felony offenses. Under this statutory scheme, the trial court must at least impose the minimum sentence required under the guidelines unless a valid basis for a departure sentence is established. § 921.00265(1), Fla....

...3.704(d)(27)(A). Here, the trial court did not render written findings regarding his reasons for the departure sentence, so we must examine the sentencing transcripts to determine whether the trial court orally announced a valid basis for the sentence. Section 921.0026(2)(a)-( l ), Florida Statutes, is a list of mitigating circumstances that justify a departure from the sentencing guidelines....

...Because this list is *182 nonexclusive, case-law may also provide valid grounds for a departure sentence. Banks. Of the statutory mitigators, our review of the record shows, and Mann argues in these proceedings, that the trial court relied on two. The first basis is that, pursuant to section 921.0026(2)(d), Mann requires specialized treatment for a mental disorder for which he is amenable to treatment. The second basis is that, pursuant to section 921.0026(2)(j), Mann committed the offenses in an unsophisticated manner and these were isolated offenses for which he has shown remorse....

...Assuming that Mann does suffer from a mental disorder, there has been no showing that he requires specialized treatment that is not available in the Department of Corrections. We now turn our attention to the second statutory mitigator relied on as a basis for the downward departure sentence. Pursuant to section 921.0026(2)(j), the trial court may consider as a basis for *183 a departure sentence the fact that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse....

...f you served fifteen months. The state then objected to the downward departure sentence "for the record," but stated no grounds. Assuming the earlier objection can carry over to the court's reasons for departure, the state is not entitled to relief. Section 921.0026(2) provides a list of mitigating circumstances which will justify a downward departure....

...This list includes the instance in which a defendant cooperates with the state to resolve the offense, the offense was committed in an unsophisticated manner, and the criminal acts constitute isolated incidents for which the defendant has shown remorse. § 921.0026(2)(i) and (j), Fla. Stat.(1999). However, this list of statutory departure reasons is not exclusive. § 921.0026(1)....

...White testified to grossing an average of $1,500 per week from his employment since he has been out of jail, but he has yet to make restitution. [3] The current version of the statute expressly prohibits consideration of a defendant's substance abuse at the time of the commission of the crime as a reason for departure. See § 921.0026(3), Fla....

...made by a state employee who prepared the PSI, but who did not appear to testify. 2. Cooperation With the State. The statutory mitigating factor of cooperation [3] requires more than a confession to the authorities after arrest and pleading guilty. § 921.0026(2)(i), Fla....

...PETERSON and THOMPSON, JJ., concur. NOTES [1] Failure to file written reasons in downward departure cases is not reversible error, where oral reasons are encapsulated in the sentencing transcript. Pease v. State, 712 So.2d 374 (Fla.1997). [2] §§ 921.0016(4)(j), and 921.0026(2)(j), Fla. Stat. [3] § 921.0026(2)(i), Fla. Stat. [4] We are tempted to refuse to consider this appeal because .9 months is di minimis, although it is a technical departure. However, since it was consolidated with the other cases, we will address the merits. [5] §§ 921.0016(5); 921.0026(3), Fla....

...A trial court may depart downward from the minimum sentence required by the guidelines when circumstances reasonably justify mitigation of the sentence. See State v. Stanton, 781 So.2d 1129, 1131 (Fla. 3d DCA 2001); State v. Baksh, 758 So.2d 1222, 1224 (Fla. 4th DCA 2000). Departures based on reasons not delineated in section 921.0026(2), Florida Statutes (1999), which are supported by the record, are permissible. See State v. Laroe, 821 So.2d 1199, (Fla. 5th DCA 2002); Stanton, 781 So.2d at 1131 (section 921.0026 list of mitigating circumstances is nonexclusive)....

...o depart from the score sheet sentence. The State further contends that, even if the evidence does support the trial court’s findings, the court nonetheless abused its discretion in departing so substantially from the minimum score sheet sentence. Section 921.0026, Florida Statutes (2011), prohibits a downward departure from the lowest permissible sentence, unless the court finds mitigating circumstances or factors that reasonably justify such departure....

...in this case: that the victim was an initiator, willing participant, aggressor, or provoker of the incident; and that the offense was committed in an unsophisticated manner, and was an isolated incident for which the defendant has shown remorse. See § 921.0026(2)®, (j), Fla....

...We conclude the first factor the trial court relied on for departure is not valid. “That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)®, Florida Statutes.” State v....

...Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005); see also State v. Grant, 912 So.2d 321, 322 (Fla. 2d DCA 2004) (holding that undercover officer involved in sting operation was not victim of defendant’s drug offense as to support downward departure factor in section 921.0026(2)®). However, there is competent, substantial evidence in the record to support the departure factor in section 921.0026(2)(j)....

...It was reasonable for the trial court to conclude that such communication tools and modes are so ubiquitous today as to no longer require any level of sophistication to use them. Having determined there is evi-dentiary support for one mitigating factor under section 921.0026(2), we consider whether the trial court abused its discretion in imposing the downward departure sentence....

...e with the trial court’s decision” to impose a downward departure sentence at all. Banks, 732 So.2d at 1068 . The record demonstrates that the court considered all the circumstances in the case, including not only the mitigating circumstances in section 921.0026(2), but also that Murphy was 22 years of age at the time of the offenses and had no prior adult criminal record, and the court fully explicated its reasons for showing leniency in sentencing....

...formation, forgery, uttering a forged instrument, giving a false name to law enforcement, burglary, and robbery. Ms. Green understood that she entered her plea with no agreement as to her sentence, but she hoped to receive a downward departure under section 921.0026, Florida Statutes (2001-03), because she required specialized treatment for both mental disorders and a physical disability. At the sentencing hearing, to establish facts that would support a departure under section 921.0026, Ms....

...The court's noted reason for a downward departure was "the defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, and the defendant is amenable to treatment," language that tracks the language of section 921.0026(2)(d)....

...g." Id. at 1068. The trial court must then decide whether it should depart — "a judgment call within the sound discretion of the court." Id. The trial court here determined that Ms. Green established sufficient factual support for a departure under section 921.0026(2)(d), which permits a downward departure sentence when the defendant presents evidence that he or she requires specialized treatment for either a mental disorder unrelated to substance abuse or addiction or a physical disability and is amenable to treatment....

...Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000) (citing Banks, 732 So.2d 1065). Through Dr. Gamache's testimony, Ms. Green established that she had major depressive and posttraumatic stress disorders that were "unrelated to substance abuse or addiction." § 921.0026(2)(d)....

...with a firearm after a jury trial. His sole argument on appeal is that during sentencing the trial court improperly considered his lack of remorse and/or culpability when he requested a downward departure sentence as a youthful offender pursuant to section 921.0026(2)( l ), Florida Statutes (2006)....

...a youthful offender to two years imprisonment, followed by two years of community control and two years of probation with certain conditions. Both Johnson and his counsel requested the court for a downward departure sentence as a youthful offender, section 921.0026(2)( l ), in accordance with the PSI report recommendation....

...[1] On this appeal, Johnson argues that his right to due process was violated when the trial court impermissibly weighed his protestation of innocence in *1017 considering his request for a downward departure from the sentencing guidelines as a youthful offender pursuant to section 921.0026(2)( l )....

...THE COURT: Have I already adjudicated the defendant guilty? [DEFENSE COUNSEL]: I believe at the time of the verdict. THE CLERK: Yes. THE COURT: I'm going to sentence the defendant to 20 years in prison, ten year mandatory minimum, credit for time served. [2] A statutory exception exists in section 921.0026(2)(j), Florida Statutes (2006), which allows a sentencing court to grant a downward departure sentence to a defendant on the grounds that the offense was committed in "an unsophisticated manner and was an isolated incident for which...

...Perez-Gonzalez, 884 So.2d 1031 (Fla. 3d DCA 2004). The record before us, however, reflects that Johnson and his counsel never sought a mitigated sentence pursuant to this subsection. Rather, they sought a downward departure sentence as a youthful offender solely pursuant to section 921.0026(2)( l ).

...legislative sentencing policy. To begin with, the legislature is serious about sentencing. "A downward departure from the permissible sentence is discouraged unless there are circumstances or factors that reasonably justify the downward departure." Section 921.0026(1), Florida Statutes....

...itted in an unsophisticated manner and the incident was an isolated incident for which he has shown remorse; and (2) at the time of his arrest, he was too young to appreciate the consequences of his offenses. We will address the latter ground first. Section 921.0026(2)(k), Florida Statutes (2005), provides that one of the circumstances justifying a downward departure is if "[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense." A defendant's youthful age alone, however, will not justify a departure sentence....

...o appreciate the consequences of his actions. In fact, the record is devoid of any evidence which suggests that the defendant lacked the maturity to appreciate the consequences of his actions. Although many cases focus on the youthfulness element of section 921.0026(2)(k), the statute specifically requires that the defendant must also be unable to appreciate the consequences of the offense in order to be eligible for a downward departure sentence. See § 921.0026(2)(k), Fla....

...Because there was no evidence in the record that the defendant was too young to appreciate the consequences of his offenses, and in fact the record reflects the contrary, we conclude that the trial court erred in granting a departure sentence based upon section 921.0026(2)(k)....

...The other basis that the trial court relied upon when it imposed a departure sentence was that the offenses committed by the defendant were committed in an unsophisticated manner and were isolated incidents for which the defendant has shown remorse. This ground for departure, however, is only valid under section 921.0026(2)(j) when there is substantial competent evidence supporting all three elements....

...4th DCA 2006); State v. Perez-Gonzalez, 884 So.2d 1031 (Fla. 3d DCA 2004). As the record does not contain competent substantial evidence which would support a finding that the charged offenses were committed in an unsophisticated manner, a departure based upon section 921.0026(2)(j) was unjustified....

...Peter Barnhill appeals his sentences for twenty counts of possessing child pornography after he entered an open guilty plea to the trial court. Barnhill sought a downward departure sentence based on a need for specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, pursuant to section 921.0026(2)(d), Florida Statutes (2010), as well as on his cooperation with law enforcement, pursuant to section 921.0026(2)®....

...sentencing. We therefore reverse Barnhill’s sentences and remand for resen-tencing. I. Background In his motion for a downward departure, Barnhill sought a five-year prison sentence followed by a lengthy term of probation. As the motion related to section 921.0026(2)(d), Barnhill depended heavily on a forensic psychological evaluation conducted by Dr....

...gage in future acts of sexually related impropriety.” In making these findings, Dr. Bur-sten relied on a polygraph examination which revealed that Barnhill was truthful when denying any sexual contact with minors. As Barnhill’s motion related to section 921.0026(2)®, Barnhill pointed out that he truthfully answered law enforcement’s questions, showed investigators his computer, and even pointed out a specific folder on the computer containing child pornography....

...as well as listening to the presentation ... by the [S]tate of Florida, I’m going to find that there is no legal reason at this point in time to downward depart. On appeal, Barnhill argues the trial court erred by denying his motion for a downward departure pursuant to sections 921.0026(2)(d) and (2)(i)....

...Therefore, while we affirm Barnhill’s convictions, we reverse the sentences imposed and remand for resen-tencing before a different judge. In doing so, we do not suggest that Barnhill is entitled to a downward departure sentence pursuant to either section 921.0026(2)(d) or *1062 (2)(i), but he is entitled to be sentenced at a proceeding wherein the trial judge considers the totality of the circumstances based on the evidence presented in this case....

...DAVIS, C.J., and ALTENBERND, NORTHCUTT, CASANUEVA, SILBERMAN, KELLY, VILLANTI, WALLACE, LaROSE, KHOUZAM, CRENSHAW, BLACK, and SLEET, JJ„ concur. . Ch. 96-248, § 5, at 955, Laws of Fla. . We note that the State appears to argue that the requirements of step 1, as it relates to grounds for departing downward under section 921.0026(2)(i), cannot be met in this case due to a waiver by Barnhill....

...Furthermore, the issue of whether Barnhill presented sufficient evidence to establish a legal ground for departure need not be addressed given our disposition on the due process issue as explained herein. . Barnhill also raised the issue of whether, under section 921.0026(2)(d), a defendant must still establish that his mental disorder requires treatment that is not available in the Department of Corrections....

...The trial court listed the following reasons in support of the downward departure sentence: (1) one of Rafferty's children had died; (2) the children's mother had been injured; and (3) the surviving child and his mother needed Rafferty's financial support. None of these reasons is listed in section 921.0026(2), Florida Statutes (1997), as a mitigating circumstance under which departure is reasonably justified....

...ll not be overturned absent an abuse of discretion. See id. A victim's need for restitution is a valid reason for a downward departure sentence only if competent, substantial evidence shows the victim's need outweighs the need for incarceration. See § 921.0026(2)(e), Fla....

...ally provided valid reasons for departure. Jackson, 22 So.3d at 818 . The district court concluded further that the ground provided orally for the downward departure — that Jackson was amenable to drug rehabilitation — was not valid. Id. (citing § 921.0026(3), Fla....

...For noncapital offenses committed on or after October 1, 1998, “[t]he lowest permissible sentence provided by calculations from the total sentence points pursuant to s. 921.0024(2) is assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1), Fla. Stat. (2008). A departure sentence is one that “decreases an offender’s sentence below the lowest permissible sentence” provided by calculations from the total sentence points. § 921.00265(2), Fla. Stat. (2008); see also Fla. R.Crim. P. 3.704(d)(27)(A). A trial court must not impose a downward departure sentence unless mitigating circumstances or factors are present which reasonably justify such a departure. §§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla. R.Crim. P. 3.704(d)(27). Section 921.0026(2) sets forth a nonexclusive list of mitigating factors under which a departure from the lowest permissible sentence is reasonably justified. § 921.0026(2), Fla....

...State, 565 So.2d 1329, 1331 (Fla.1990), receded from on other grounds by Smith v. State, 598 So.2d 1063 (Fla.1992). However, the CPC and applicable rules now require a sentencing court to file written reasons supporting the imposition of a downward departure sentence within seven days after the date of sentencing. § 921.00265(2); see also Fla. R.Crim. P. 3.704(d)(27)(A). A court may file a written transcription of reasons stated orally at sentencing for a downward departure within seven days after the date of sentencing. § 921.00265(2); see also Fla....

...Conviction affirmed; sentence vacated and cause remanded for a new sentencing hearing before a different judge. The defendant is entitled to be present at the new sentencing hearing. NOTES [1] It should be noted that Appellant did not testify at his trial. [2] See, e.g., § 921.0026(2)(j), Fla....

...the defendant in the pending case.” Id. at 1068 (emphasis in original). If a trial court grants a downward departure, an appellate court does not have the power under the current statutory scheme to review the extent of the downward departure. See § 921.0026(1), Fla....

...At sentencing, the defense moved for a downward departure on the ground that the offense was “committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” a statutory ground for seeking a downward departure. See § 921.0026(2)(j), Fla....

...After having heard the testimony and arguments of the attorneys, the trial judge concluded that Appellee had "a serious problem with alcohol [that caused Appellee] to act in an unsophisticated manner." Based thereon, the court chose to impose a downward departure probationary sentence, pursuant to section 921.0026(2)(j), Florida Statutes, (2002). For the reasons stated herein, we conclude that the imposition of the departure sentence was error. Section 921.0026, Florida Statutes, contains a non-exclusive list of mitigating circumstances a court may use as the basis for a departure sentence. One such circumstance is where the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026(2)(j), Fla....

...lated incident, committed in an unsophisticated manner, and for which the defendant had shown remorse. Id. Any departure based on these grounds must be supported by written reasons or orally pronounced findings of fact on each of the three elements. § 921.00265(2), Fla....

...tted in an unsophisticated way. The trial judge made no findings related to the other two elements, nor was there record evidence to support any conclusion that the offenses were isolated or that Appellee had shown remorse. Departure predicated upon section 921.0026(2)(j), Florida Statutes, therefore, was not proper. Although the statutory list of mitigating circumstances upon which downward departure may be based is not intended to be exhaustive, the legislature has clearly prohibited departure on the basis of substance abuse or addiction. Section 921.0026(3), Florida Statutes, states as follows: The defendant's substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor......

...At the sentencing hearing appellee provided the court with a physician's letter stating that appellee was a non-insulin diabetic and that he had sciatica. He also indicated that he had heart problems and that he took oral medications to correct these various health problems. Section 921.0026(2)(d), Florida Statutes (1999), permits downward departures where a defendant requires specialized treatment for a physical disability and the defendant is amenable to such treatment....

...tment could not be provided by the Department of Corrections. See, State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998). The trial court also referred to appellee's age as a basis for departure. Appellee was 48 years old at the time of sentencing. Section 921.0026(2)(k) provides a reason for departure where "......

...First, the trial court must determine whether there is a valid legal ground for departure and whether there is adequate factual support for that ground in the pending case. Id. Legal grounds include those set forth in case law and statutes, although the mitigating circumstances listed in section 921.0026(2), Florida Statutes (2000), are not exclusive of other valid legal grounds....

...rt finds the trial court abused its discretion. Id. The trial court's first reason for departure, that the need for restitution outweighed the need for a prison sentence, can be a valid legal reason for a departure sentence. See §§ 921.0016(4)(e), 921.0026(2)(e), Fla....

...See White, 755 So.2d at 831-32; see also Schillaci, 767 So.2d at 600. The second reason for departure, that Owens seemed amenable to drug rehabilitation, "does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines." §§ 921.0016(5), 921.0026(3) Fla. Stat. (2000); see also State v. Ford, 739 So.2d 629, 629 (Fla. 3d DCA 1999). As such, the second reason for departure "contravenes the plain language of the statute." See State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003) (citing section 921.0026(3), Fla....

...We proceed to first determine whether the trial court provided valid legal grounds for the departure sentence that are supported by competent substantial evidence. One of the grounds relied on by the trial court to justify the departure sentence was that Brannum committed the offenses in an unsophisticated manner. Section 921.0026(2)(j), Florida Statutes (2002), provides that one of the non-exclusive mitigating circumstances a court may use as the basis for a departure sentence is that the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse....

...with a weapon, and two counts of aggravated child abuse. She filed a motion for downward departure from the permissible sentencing guideline range, the bottom of which was 24.12 years in state prison, based upon the fact that she was remorseful, see § 921.0026(j), Fla. Stat. (1997); and that she required specialized treatment for a mental disorder and was amenable to treatment, see section 921.0026(d)....

...We reverse appellant's downward departure sentence, and remand for resentencing within the guidelines. A mitigating factor which justifies a downward departure from the sentencing guidelines is, "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla....

...We have for review the decision in State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001), which certified conflict with the decision in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), approved on other grounds, 762 So.2d 507 (Fla.2000), on the issue of whether the mitigator in section 921.0026(2)(j), Florida Statutes (Supp. 1998), is available to support a downward departure from a sentence for a driving under the influence (DUI) conviction. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a felony DUI conviction....

...Defense counsel argued for a downward departure from the guidelines sentence of *1048 175.9 to 240 months based on the statutory mitigator of "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla. Stat. (Supp.1998). The trial court agreed that the evidence fulfilled the requirements of section 921.0026(2)(j) and imposed a downward departure....

...ticated manner. The State objected to the downward departure, thus preserving this issue, which it then appealed. VanBebber, 805 So.2d at 919 (footnotes omitted). The Second District affirmed the decision of the trial court and held the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a DUI conviction, but certified conflict with Warner on this issue. See VanBebber, 805 So.2d at 921. DISCUSSION Section 921.0026 is part of the Florida Criminal Punishment Code [2] and provides, in relevant part: 921.0026 Mitigating circumstances.—This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998....

...(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. § 921.0026, Fla. Stat. (Supp.1998). In concluding that the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a DUI conviction, the Second District reasoned: (1) section 921.0026 states unequivocally, *1049 "This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998," and (2) cognizant of the public policy against drunk driving, the Legislature still did not exempt DUI crimes from application of section 921.0026(2)(j). VanBebber, 805 So.2d at 920. [3] We agree with the Second District's reasoning. Section 921.0026 plainly states, "This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998." [4] 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, [5] 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....

...Beck, 763 So.2d 506, 508 (Fla. 4th DCA 2000) ("We also note that drunk driving cannot be committed in an unsophisticated manner."). Although we fully recognize the State's strong public policy against DUI, we find that the issue in this case, whether the mitigator in section 921.0026(2)(j) is available to support a downward departure from a DUI conviction, is resolved by the clear and unambiguous statutory language of section 921.0026. Because the statute states that the mitigator in section 921.0026(2)(j) applies to any felony offense, except any capital felony, committed on or after October 1, 1998, we hold that the mitigator in section 921.0026(2)(j) is available to support a downward departure from a felony DUI conviction. The State also argues, however, that to hold section 921.0026(2)(j) applicable to felony DUI convictions would create conflict with section 921.0026(3), which provides: (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. We find that no conflict is created by holding section 921.0026(2)(j) applicable to felony DUI convictions....

...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....

...As the Second District noted, "we shall not judicially legislate and interpret the law to negate the clear language used by the legislature." VanBebber, 805 So.2d at 920. Finally, the State argues that the Second District improperly relied on State v. Sachs, 526 So.2d 48 (Fla.1988), to buttress its conclusion that section 921.0026(2)(j) is available in this case....

...iously found the same reasons for departure valid in a case involving a DUI offense, even before the reasons were codified as a mitigator in the Florida Statutes. Therefore we find that the Second District did not err by relying on Sachs. CONCLUSION Section 921.0026 is clear and unambiguous and provides that the mitigators found therein are applicable to all felony offenses except capital felonies. The offense of DUI is a noncaptial felony offense. Therefore, we hold that the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a felony DUI conviction....

...PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs. QUINCE, J., dissents with an opinion, in which WELLS, J., concurs. PARIENTE, J., concurring. I write to express my agreement with the majority and elaborate on my reasons for concurring. Section 921.0026(2)(j), Florida Statutes (2002), allows the trial court to impose a downward departure sentence if the trial court finds that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse....

...been required to impose a Criminal Punishment Code prison sentence of no less than 175.9 months (14.65 years) up to 240 months (20 years) in prison. The evidence presented in the trial court establishes the basis for a downward departure pursuant to section 921.0026(2)(j): this was an isolated instance and the defendant exhibited "extreme and sincere remorse while recognizing his fault." These facts are more fully detailed in Judge Altenbernd's concurrence: Mr....

...He pleaded guilty to these offenses with no promise as to the sentence he would receive. He is a religious man, who has repeatedly stated that he wishes that he could have been the person who died in this accident. State v. VanBebber, 805 So.2d 918, 921 (Fla. 2d DCA 2001) (Altenbernd, A.C.J., concurring). Section 921.0026(2)(j) appears to have been written exactly for a defendant such as VanBebber....

...although he or she has demonstrated remorse for an offense that was an "isolated" incident, nonetheless committed the crime in a sophisticated manner either in its planning or execution. As the Second District succinctly stated in this case: First, section 921.0026, which lays out certain mitigating circumstances, states unequivocally: "This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998." There is no exception provided for DUI offenses, as was done for a capital felony....

...erious and real problem of DUI. [8] I likewise urge the Legislature to examine whether a prison term under the guidelines must necessarily be imposed for this type of offense in the absence of one of the twelve grounds for a downward departure under section 921.0026....

...These substantial sanctions fashioned by the trial court are tailored to fit the crime and offender, and also serve in some way to attempt to repair the damage caused by his terrible act. [9] For all these reasons, I agree with the majority's conclusion that the trial court in this case was permitted to use section 921.0026(2)(j) to support a downward departure sentence for a felony DUI conviction. ANSTEAD, C.J., concurs. QUINCE, J., dissenting. I disagree with the majority that because section 921.0026, Florida Statutes (Supp.1998), provides that the mitigators in that section are applicable to all felonies except capital felonies, that the mitigator in section 921.0026(2)(j) is applicable to the felony of driving under the influence (DUI). I would affirm the view espoused by the Fourth District in State v. Beck, 763 So.2d 506 (Fla. 4th DCA 2000), and State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), that the mitigating factor in section 921.0026(2)(j) is not applicable to DUI convictions. In Beck, the Fourth District reversed a trial court's downward departure from the sentencing guidelines. One of the reasons given for the departure was the section 921.0026(2)(j) mitigating factor....

...If the crime is one that is not capable of being committed in a sophisticated manner, then logically, it cannot be committed in an unsophisticated manner. As the Fourth District held, DUI is a crime which cannot be committed in a sophisticated or unsophisticated manner. This reading of section 921.0026(2)(j) does not run afoul of the general provision that the mitigators in this section are applicable to all noncapital felonies....

...In determining whether a mitigating factor is applicable, the sentencing court must look at the facts and circumstances of the offense as well as the type of crime that was committed. When the facts and circumstances and the type of crime are considered in this case, I reach the conclusion that section 921.0026(2)(j) is not applicable to the crime of DUI....

...WELLS, J., concurs. NOTES [1] The State contends this is a slight misstatement. The mitigator at issue in this case has three parts-the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. See § 921.0026(2)(j), Fla....

...und the manner of committing the offense, the fact that it was an isolated incident, and the fact that the defendant had shown remorse were valid reasons for a downward departure in a DUI case. See VanBebber, 805 So.2d at 920-21. [4] As noted above, section 921.0026(2)(j) is part of the Florida Criminal Punishment Code....

...1998." § 921.002, Fla. Stat. (Supp. 1998). [5] The offense in this case was committed on May 23, 1999. [6] Section 921.0016(4) was repealed effective October 1, 1998, with the implementation of the Florida Criminal Punishment Code. See §§ 921.002-921.0026, Florida Statutes (1997). Section 921.0026 was enacted effective October 1, 1998. The mitigators listed in sections 921.0016(4) and 921.0026(2) are identical....

...Fontaine abandons any argument in support of the trial court's first ground for departure, but contends that competent substantial evidence supports the departure on the second ground. We need not address the first ground because the second ground is dispositive. Section 921.0026(2)(c), Florida Statutes, provides that a downward departure is permitted if "[t]he 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." The trial court applied a valid basis for downward departure....

...WARNER, J., concurring specially. I concur in the majority opinion, but I would also affirm the trial court's finding that this offense was committed in an unsophisticated manner, and was an isolated incident for which Fontaine showed remorse. See § 921.0026(2)(j), Fla....

...The State of Florida timely appeals the trial court's downward departure sentence imposed on Michael Waterman on a charge of escape. In this appeal, the State argues that the trial court erred in granting Waterman a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2008), because the record shows that his escape charge was not an isolated incident, one of the requirements for a mitigated sentence under that subsection of the statute....

...tence because his escape charge was not an isolated incident. Waterman contends that all of his prior crimes occurred while he was a juvenile, so they should not be considered when determining whether his present crime was an isolated incident under section 921.0026(2)(j), Florida Statutes (2008)....

...Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999) (citations omitted). Section 921.0026(2)(j), Florida Statutes (2008), permits a trial court to depart from the lowest permissible sentence when "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remors...

...5th DCA 1999) (the defendant's current offense was an isolated incident where he had only one prior criminal conviction). Thus, the issue for this Court is whether Waterman's criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008)....

...precluded his current offense from being labeled "isolated." See id. Thus, the statutory mitigator did not apply. Id. We agree with that analysis, and hold that Waterman's record is too extensive for his escape charge to be labeled "isolated" under section 921.0026(2)(j), Florida Statutes (2008). Accordingly, there is not competent, substantial evidence to support the trial *1269 court's ruling that Waterman's escape charge was an isolated incident. His criminal history precludes him from receiving a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008)....

...The trial court also considered adverse testimony by the state's witnesses; some supported the state's call for a 49 year guidelines prison sentence, and others suggested only that the sentence should include at least some time in prison in addition to probation. Section 921.0026(2), Florida Statutes, contains a non-exhaustive list of mitigators....

...s shown remorse." When the trial court relies solely on this mitigator, all three elements must be shown. State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004). The trial judge, in accordance with the requirements of a downward departure utilizing section 921.0026(2)(j), found that Strawser, who had previously admitted to all offenses as charged, was remorseful and that the conduct was done in an unsophisticated manner. The trial court failed to explicitly articulate a finding on the "isolated incident" aspect of section 921.0026(2)(j); however, the court did comment on Strawser's lack of criminal record and his age and immaturity at the time of the crimes....

...State, 826 So.2d 509 (Fla. 4th DCA 2002), reversed a downward departure reasoned on subsection (2)(j), where there was not record support for all three factors in (2)(j). Here, however, the trial court's departure need not rest solely upon the factors in subsection (2)(j). Section 921.0026, although listing permissible factors that the trial court may consider, also clearly reflects the legislative intent that permissible mitigation below the guidelines is "not limited to" those grounds specifically listed....

...ess: 1. The state attorney requests in writing that adjudication be withheld; or 2. The court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026....

...g that the trial court could supplement the record with written justification but yet anticipating that the judge would not do so? Was the objection based on the prosecutor's contention that sufficient mitigating factors did not exist — pursuant to section 921.0026 — to justify a withhold of adjudication? Was the State of the opinion that the trial court's reasoning was legally flawed? Given the form of the State's general objection below, we are unable to discern why the State "obviously" lodged an objection....

...ision likely would impress us as fundamental."). The state has not argued that this failure constitutes fundamental error, nor has it argued that the reason orally assigned by the judge for withholding would not comport with the factors set forth in section 921.0026, Florida Statutes....

...For these reasons, I concur in the affirmance of the judgment and sentence. NOTES [1] Although inconsequential for purposes of this appeal, the record indicates that the court was apprised of the fact that Calvert had been charged with loitering and prowling in 2007. [2] Section 921.0026, Fla....

...The court reasoned that the unsophisticated manner *636 in which the crime was committed together with Jordan's expression of remorse warranted the suspension of the two five-year terms of incarceration, and imposed ten years probation instead. The trial judge's reasoning is deficient in that section 921.0026(2)(j), Florida Statutes (2003), requires three prongs for departure. More specifically, section 921.0026(2)(j) mandates that: (1) the crime was committed in an unsophisticated manner; (2) the defendant has shown remorse; and (3) the crime was an isolated incident....

...The record does not indicate that there was any doubt in either the court's or the defense counsel's minds about the grounds for the objection in the instant case. Sentencing courts are not exclusively bound to the departure reasons promulgated in section 921.0026, but we do not believe that the Legislature intended that sentencing courts adopt a new mitigating circumstance by simply eliminating one of the prongs of a statutorily enumerated reason for departure....

...[Appellee] has shown remorse for his neglect which led to the commission of the offense. A trial court may not impose a sentence that departs from the statutory guidelines "unless there are mitigating circumstances or factors present as provided in s. 921.0026." § 921.00265(1), Fla. Stat. (2006). Section 921.0026, Florida Statutes (2006), provides a non-exclusive list of mitigating circumstances that reasonably justify departure....

...Here, the trial court's reasons for departure fail step 1 of the Banks test as they constitute legally invalid reasons for departure. First, the trial court found appellee pled guilty. However, it is well established that an open plea is not a valid reason for departure. See § 921.0026(2)(a), Fla....

...5th DCA 2004) (finding an open plea is "not a valid reason for departure sentence where there was no plea agreement entered into between the defendant and the State."). *114 Second, the trial court found appellee admitted he failed to re-register as a sexual offender. However, a confession is an invalid reason for departure. Section 921.0026(2)(i) provides a valid reason for departure is that the defendant "cooperated with the State to resolve the current offense." However, "a departure sentence cannot be based on cooperation where the assistance does not result in solving any crimes or the arrest of other persons." State v....

...several insufficient reasons for downward departure). Eighth, the trial court found this offense was "committed in an unsophisticated manner in that [appellee] neglected to do what was required." Tenth, the trial court found appellee showed remorse. Section 921.0026(2)(j) provides as a mitigating factor for downward departure that "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." However, "[a]ll three components—th...

...der for a downward departure sentence to be imposed under the statute." State v. Gaines, 971 So.2d 219, *115 220 (Fla. 4th DCA 2008) (citing State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005)). Here, the court failed to find the second element of section 921.0026(2)(j) was present, that the incident was isolated....

...Therefore, the only evidence upon which the trial court could have properly relied was appellee's testimony during the sentencing hearing that he forgot to register because he had been laid off from his job. This reason for departure is not one of the statutory mitigating circumstances provided in section 921.0026, nor one that appears to be consistent with legislative sentencing policies....

...Because we agree with the State that all five grounds given to support the downward departure were improper, we reverse. The fact that Holmes suffers from addiction to controlled substances is, as the trial judge recognized, specifically excluded as a statutory basis for downward departure. § 921.0026(3), Fla....

...The finding that Holmes was only an accomplice and a relatively minor participant is not supported by competent substantial evidence in the record. That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)(f), Florida Statutes....

...that no evidence was introduced regarding these factors and the trial judge did not take judicial notice of any type of report or other information to support the reason. Finally, the finding that a downward departure was warranted pursuant to *528 section 921.0026(2)(d), Florida Statutes, because Holmes requires specialized treatment for a physical disability and is amenable to treatment, is not supported by competent substantial evidence....

...She has to report. The trial court never filed any written reasons for the downward departure sentence. The State now appeals, contending that the downward departure sentence is unsupported by competent, substantial evidence. We agree. Pursuant to section 921.0026(1), Florida Statutes (2004), the trial court may not impose a sentence below the lowest permissible sentence required by the Criminal Punishment Code unless the defendant establishes a valid basis for departure....

...If the defendant's evidence establishes a valid basis for a downward departure sentence and the trial court decides to impose such a sentence, the trial court must file written reasons supporting the downward departure within seven days after the date of sentencing. § 921.00265(2); see also Carlson, 911 So.2d at 236; State v....

...Ayers, 901 So.2d, 942, 945 (Fla. 2d DCA 2005). If the trial court fails to file written reasons, a downward departure sentence may nevertheless be affirmed if the trial court has made oral findings supporting the departure sentence on the record at the sentencing hearing. § 921.00265(2); see also Pease v....

...ndings on the record at the hearing that are supported by competent, substantial evidence. In this appeal, Hall contends that the trial court did make an oral finding, albeit "inartfully," that she was entitled to a downward departure sentence under section 921.0026(2)(d), which permits a downward departure if the defendant "requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatme...

...med because it is not supported by competent, substantial evidence in the record. There is no question that Hall established that she suffers from bipolar disorder and that she is amenable to treatment. However, "[t]o receive a sentence pursuant to [section 921.0026(2)(d)], a defendant must [also] prove that the Department of Corrections (DOC) cannot provide the specialized treatment required." State v....

...sentence. In addition, the trial court did not convene a new sentencing hearing. Rather, the trial court simply entered an amended judgment and sentence reflecting the downward departure sentence. The State then filed this timely appeal. Pursuant to section 921.0026(1), Florida Statutes (2003), the trial court may not impose less than the lowest permissible sentence required by the Code unless the defendant establishes a valid basis for departure. If the defendant establishes such a basis, the trial court must file written reasons that support the downward departure sentence within seven days after the date of sentencing. § 921.00265(2); see also State v....

...Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005). If the trial court fails to file written reasons, a downward departure sentence may nevertheless be affirmed if the trial court has made oral findings supporting the departure sentence on the record at the sentencing hearing. § 921.00265(2); Pease v. State, 712 So.2d 374 (Fla.1997). In the absence of either written or oral findings, however, a downward departure sentence is improper. § 921.0026(1)....

...-kines’s perceived lack of sincere remorse into consideration. This constitutes reversible error. Whether a defendant has shown remorse is, of course, a consideration the court may give when determining whether to grant a mitigation sentence under section 921.0026(2)(j), Florida Statutes (2010) (listing whether the “offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse” as a factor to consider in a mitigation request)....

...By virtue of the statute, Dinkines automatically fell *481 under the mandatory mitigated sentence of a nonstate prison sanction. The trial court did not have discretion to consider whether Dinkines was entitled to the mitigation sentence under the traditional factors of section 921.0026(2) because those factors were not applicable to Dinkines....

...dge would impose a departure sentence, to which the State would object. After taking Colbert's plea, the trial judge simply announced that this "will be a downward departure over the State's objection," and indicated that the basis for departure was section 921.0026(2)(j), Florida Statutes (allowing a downward departure where "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.")....

...If that objection had been timely made, Colbert then would have had the opportunity to respond and place any supporting evidence on the record. Perhaps the State had no objection to counsel simply proffering the evidence, but viewed that evidence as insufficient to support a downward departure under section 921.0026(2)(j)....

...Thus, the issue squarely facing us is whether the willing participation of a seventeen-year-old young woman in a statutorily prohibited sexual relationship, although not a defense to the crime, can be considered by the judge in determining the appropriate sentence. We agree that section 921.0026, Florida Statutes, gives the trial judge the discretion to mitigate under appropriate circumstances, that the circumstances found by the trial court to exist herein are supported by the record and are appropriate, and affirm recognizing our contrary holding in State v....

...e should be reduced. Section 921.002(3), Florida Statutes, provides: "A court may impose a departure below the permissible sentencing range based upon circumstances or factors that reasonably justify the mitigating of the sentence in accordance with s. 921.0026." Thus, when we are asked to review a downward departure, there are two questions that we must consider....

...2 Included in this statu *97 tory scheme are a number of non-exclusive mitigating grounds for departure that may establish a basis for a more lenient sentence. 3 The issue we must resolve is whether competent substantial evidence supports the trial court’s decision to impose a departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2011), which allows a sentence below the minimum guideline range when the crime was “committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” We must...

...ds. If the statutory ground is supported by competent substantial evidence in the record, affirmance is appropriate. Banks . As to the non-statutory grounds, “[t]he trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” State v....

...a mitigated sentence based on their own predilections. See Williams v. State, 492 So.2d 1308 (Fla.1986); State v. Whiteside, 56 So.3d 799 (Fla. 2d DCA 2011); State v. Ayers, 901 So.2d 942 (Fla. 2d DCA 2005). We will begin with the statutory ground. Section 921.0026(2)(j) allows for a departure sentence when: 1) the crime was committed in an unsophisticated manner; 2) it was an isolated incident; and 3) the defendant expressed remorse for his wrongful acts....

...Deleon, 867 So.2d 636 (Fla. 5th DCA 2004). Regarding the second statutory element, Thompkins has a significant criminal history, including a prior conviction for burglary of a dwelling, that clearly indicates that his crimes are not isolated incidents within the meaning of section 921.0026(2)(j)....

...e and that none of the non-statutory grounds are valid. The sentence is reversed and the case is remanded for resentencing. REVERSED and REMANDED. ORFINGER, C.J. and COHEN, J., concur. . §§ 921.002-.0027, Fla. Stat. (2011). . §§ 921.0024(2)-(3), 921.0026(1), 921.00265(1), Fla. Stat. (2011). The Criminal Punishment Code does not apply to defendants charged with capital felonies. § 921.002, Fla. Stat. (2011); see also § 775.082(8)(d), Fla. Stat. (2011). . § 921.0026(2), Fla....

...sible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence." § 921.002(3), Fla. Stat. (2000) (emphasis added). One of those mitigating factors is physical disability which is amenable to treatment. See § 921.0026(2)(d), Fla....

...awyers were anxious to go to lunch. Somehow, Florida's technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal *635 sentences, but to sentences that are often more like half jeopardy. NOTES [1] See § 921.0026(2)(d), Fla....

...uld not go back to jail. Because the record does not support the two statutory reasons offered, and the justifiable reliance ground is based on inadmissible evidence, and is factually unsupported, we reverse. THE FIRST STATUTORY GROUND FOR DEPARTURE Section 921.0026(2)(j), Florida Statutes (2007), provides that where an offense was committed "in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse," a downward departure from the sentencing guidelines is justified....

...does not justify the downward departure sentence imposed. THE SECOND STATUTORY GROUND FOR DEPARTURE A downward departure sentence is also justified where "[t]he need for payment of restitution to the victim outweighs the need for a prison sentence." § 921.0026(2)(e), Fla....

...ability to make continued payments pursuant to the schedule, and no evidence reveals whether completion of the restitution payments would significantly affect Fidelity's interests, under these circumstances, the downward departure ground provided in section 921.0026(2)(e) was improper....

...not desired, Fidelity did not show that the extent of the harm suffered as a result of the defendant's crimes was greater than normally expected, or how restitution would operate to mitigate that harm. See id. (noting that a downward departure under section 921.0026(2)(e) requires a greater than normal harm and a showing that restitution could mitigate that harm)....

...preference for restitution, and a downward departure is not justified. [2] In addition, because the record does not contain any evidence of the defendant's ability to make continuing restitution payments, this downward departure sentence pursuant to section 921.0026(2)(e) must be reversed....

...3), Florida 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....

...2d DCA 2002)). 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....

...(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." Id. at 1050 (quoting § 921.0026(3))....

...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....

...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....

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

...The Florida Rule of Criminal Procedure 3.992(a) Criminal Punishment Code Scoresheet contains this notation: "Departure based on mental health for depression & vascular dementia." The sentence computation shown on the scoresheet reflects a lowest permissible prison sentence of fifty-one months. II. Analysis Section 921.0026(1), Florida Statutes (Supp.1998), provides that, under the Criminal Punishment Code, "[a] downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure." See also § 921.002(1)(f). Section 921.0026(2) provides in pertinent part: Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: ....

...ce of the evidence.... Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge." The sentencing scoresheet shows that the circuit court determined that a departure sentence was warranted under section 921.0026(2)(d)....

...and the matter remanded to the trial court for further proceedings consistent with this opinion. Sentence reversed; case remanded. ALTENBERND, C.J., and WHATLEY, J., concur. NOTES [1] We note that although the circuit court did not expressly rely on section 921.0026(2)(c), which provides that a defendant's "substantially impaired" capacity "to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law" is a mitigating circumstance, that subsection might b...

...Jimmie Gaines was tried by jury and convicted of fleeing or attempting to elude a marked police car, possession of cocaine, and habitual driving with a revoked license. Then, despite defense counsel's representation that there was no basis for a downward departure sentence and over the State's objection, relying upon section 921.0026(2)(j), Florida Statutes (2006), the trial judge imposed a sentence that was less than the lowest permissible sentence reflected on Gaines's Criminal Punishment Code score sheet....

...new trial. We reject the arguments raised by Gaines in his cross-appeal and affirm his convictions without further comment. We find merit, though, in the State's claim that the departure sentence cannot be sustained and write to address this issue. Section 921.0026(2)(j), Florida Statutes (2006), permits the imposition of a sentence that is less than the lowest permissible sentence as calculated under a defendant's Criminal Punishment Code score sheet where "[t]he offense was committed in an un...

...Gaines has eighteen prior convictions—six for driving with a suspended license, two for burglary of a conveyance, three for burglary of a dwelling, five for larceny, one for possession of cocaine, and one for robbery. A downward departure sentence predicated upon section 921.0026(2)(j) thus plainly cannot be sustained....

...Randall apparently had only a single prior conviction. 746 So.2d at 552. At the sentencing hearing, the judge indicated he would impose a downward departure sentence if Randall pled guilty. Randall entered the plea and the trial court imposed a downward departure sentence, relying upon section 921.0026(2)(i) (the defendant cooperated with the State) and section 921.0026(2)(j) (the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse)....

...a result, had become depressed and angry. Fontaine, too, attributed the behavior to the drugs and the pain, indicating he did not remember the entire incident and expressing extreme remorse. The trial court imposed a departure sentence, relying upon section 921.0026(2)(c) (the defendant's capacity to appreciate the criminal nature of his behavior was substantially impaired at the time of the offense) and (j) (the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse). The majority affirmed the departure sentence based upon section 921.0026(2)(c). Fontaine had a prior criminal record, i.e., two misdemeanors, larceny and reckless driving, committed some ten years earlier and, thus, had apparently abandoned his claim that the departure sentence was authorized under section 921.0026(2)(j). In a special concurrence, Judge Warner wrote that she believed the sentence could also be sustained under section 921.0026(2)(j)....

...955 So.2d at 1250-51. Gaines's criminal record is simply not akin to that of the defendant in Fontaine. While the cases have established no bright-line rule as for when a defendant's prior criminal record is so "extensive" that it precludes a downward departure under section 921.0026(2)(j), we have little trouble concluding that Gaines's record crosses that border....

...d departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case. Subido, 925 So.2d at 1057 . The reviewing court should not disturb this determination absent an abuse of discretion. Id. Section 921.0026(2), Florida Statutes (2008), sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guideline sentence. Nevertheless, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008). Enticement is not one of the enumerated grounds for a departure sentence. See § 921.0026(2), Fla....

...rt judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence. Section 921.0026, entitled "Mitigating circumstances," provides in pertinent part: (1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...justified include, but are not limited to: . . . (d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment. . . . § 921.0026, Fla....

...ve in treating his problems. At the close of the evidence, the trial court concluded that "there was testimony that he is only able to receive in his incarceration Tylenol and not other drugs better to treat him." "To receive a sentence pursuant to [section 921.0026(2)(d)], a defendant must prove that the Department of Corrections (DOC) cannot provide the specialized treatment required." State v....

...Teal's heart condition and the monitoring demanded by his pacemaker. Mr. Teal's health situation was obviously a significant factor in the judge's decision to impose a downward departure sentence. Among the statutory mitigating circumstances listed in section 921.0026(2), Florida Statutes (2001), is: "(d) The defendant requires specialized treatment ......

...Appellant stated that she was sorry and that she had made a mistake. Prior to sentencing, appellant moved for a downward departure on the ground that “[t]he offense was committed in an unsophisticated manner and was' an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla....

...ed the right rule of law and if competent substantial evidence supports its ruling.” Id. The trial court must then determine whether it should depart. Id. at 1068 . This aspect of the court’s decision is reviewed for abuse of discretion. Id. For section 921.0026(2)(j) to be applicable, all three elements must be present: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant has shown remorse....

...4th DCA 2015). *483 However, consideration of remorse is appropriate if it occurs during a court’s consideration of whether to mitigate a sentence. Id. In the instant case, the trial court’s refusal to consider remorse was contrary to the plain language of section 921.0026(2)(j), which expressly lists remorse as a mitigating element....

...d it’s full of cocaine. I think that that is one of those circumstances where it’s unsophisticated, somebody just gave it to them. However, the supreme court disapproved of Warner in State v. VanBebber, 848 So.2d 1046 (Fla.2003), which held that section 921.0026(2)Cj) is available for all felonies except capital felonies....

...State, 787 So.2d 57 (Fla. 2d DCA 2001); Hernandez v. State, 776 So.2d 356 (Fla. 3d DCA 2001). In the present case the trial court awarded Mr. Marshall a downward departure sentence after the violation of probation without giving valid reasons for doing so. See § 921.00265(2), Fla. Stat. (2000). The statutory reasons for a downward departure are specified in section 921.0026, Florida Statutes (2000)....

...ible sentence on a criminal defendant calculated according to the Criminal Punishment Code, unless the court finds that the evidence supports a valid reason for a downward departure.” State v. Owens, 95 So.3d 1018, 1019 (Fla. 5th DCA 2012) (citing § 921.00265(1), Fla....

...Reference to the applicable statutes reveals that the only statutory ground Rankin could have pursued based on his counsel’s argument was that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)©, Fla....

...Defense counsel argued for a downward departure from the guidelines sentence of 175.9 to 240 months based on the statutory mitigator of "offense *920 was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla. Stat. (Supp.1998). The trial court agreed that the evidence fulfilled the requirements of section 921.0026(2)(j) and imposed a downward departure....

...The State argues that we should follow the Fourth District in its holding that this statutory mitigator is not available in DUI cases due to the State of Florida's strong public policy in curbing DUI offenses. Warner, 721 So.2d at 769. We decline to do so for the following reasons. First, section 921.0026, which lays out certain mitigating circumstances, states unequivocally: "This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998." There is no exception provided for DUI offenses, as was done for a capital felony....

...Without going into details, this case is a prime example of the awful effects it can have on numerous lives. However, we are confident that the legislature is equally aware of this public policy; indeed it promulgates this policy, as seen, for example, in section 921.0026(3), where the legislature precluded intoxication, itself, as a mitigator. Cognizant of this public policy, the legislature still did not exempt DUI crimes from application of section 921.0026(2)(j)....

...fact that it was an isolated incident, and the fact that the defendant has shown remorse were all valid reasons for a downward departure in *921 a DUI case. The legislature clearly adopted these valid downward departure reasons by codifying them in section 921.0026 without further limitation except as to capital felonies. We certify that our decision that the mitigator contained in section 921.0026(2)(j), Florida Statutes (Supp....

...apacity for rehabilitation while on probation." At the time the offenses in this case were committed, Appellee was 23 years of age. The offenses in this case constituted Appellee's third violation of probation for previous charges involving cocaine. Section 921.0026, Florida Statutes (2007), provides: A downward departure from the lowest permissible sentence, as calculated according to the total sentence points ......

...adequate factual support for that ground in the case pending before it (step 1)." Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)(emphasis in original). A non-exclusive list of valid legal grounds which could be applied to this case is contained in section 921.0026, Florida Statutes (2007)....

...e trial court were not adequately supported by facts in the record. While the trial court did not refer to the particular statutory circumstances it relied upon, the first reason for departure, Appellee's "unsophistication" and "remorse," relates to section 921.0026(2)(j), Florida Statutes. That statute allows downward departure if "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla....

...This mitigator requires proof of all three elements in order to support a downward departure. State v. Subido, 925 So.2d 1052 (Fla. 5th DCA 2006). The trial court correctly declined to find that the six counts in this case were isolated incidents, and the valid legal ground in section 921.0026(2)(j) was not adequately supported by the facts of this case....

...The trial court's second reason for departure, Appellee's "young age combined with his below normal level of intellect and maturity" which "made it clear that the Defendant was too young to appreciate fully the consequences of his actions" relates to section 921.0026(2)(k), that "[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense." However, the record shows that at the time of the offenses in this case, Appellee was 23 years old and was for the third time violating his probation for previous drug possession charges....

...s upon which to withdraw his plea. KAHN and DAVIS, JJ., concur. NOTES [1] Although not argued by the parties on appeal or specifically referred to by the sentencing court, the lack of evidence showing some mental incapacity also precluded the use of section 921.0026(2)(c), Florida Statutes, that Appellee's capacity "to appreciate the criminal nature of his conduct or to conform his conduct to the requirements of the law was substantially impaired," as support for the downward departure.

...Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ. LEVY, Judge. The State appeals from a final judgment of conviction and sentence on the ground that the trial court erroneously sentenced the defendant, Miguel Perez-Gonzalez, to a downward sentence without valid reasons for the departure. Section 921.0026(1), Florida Statutes, prohibits a downward departure from the lowest permissible sentence as calculated by the guidelines score sheet. § 921.0026(1), Fla. Stat. (2003). Section 921.0026(2)(j), Florida Statutes, permits a downward departure sentence where the defendant can establish that the crime was an isolated incident, that the crime was committed in an unsophisticated manner, and that the defendant showed remorse. § 921.0026(2)(j), Fla....

...Jacobson as a witness until it was too late for a State witness to prepare for the hearing. Analysis—Mr. Massingill At oral argument, counsel for both defendants candidly acknowledged that the record did not establish that "the offense was committed in an unsophisticated manner" for purposes of section 921.0026(2)(j). Rather, Mr. Massingill relies upon mitigation under section 921.0026(2)(b), the "defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct." Mr....

...However, the order also included findings regarding two other statutory mitigators: "the capacity of the defendant to appreciate the criminal nature of the conduct or to *680 conform that conduct to the requirements of the law was substantially impaired," § 921.0026(2)(c), and "the defendant suffers from adjustment disorder, dysthymic disorder, and possibly a mood disorder, not related to substance abuse or addiction, and requires and is amenable to treatment," § 921.0026(2)(d)....

...That evidence was not available to the defense until January 9, 2010 and was not disclosed to the State with reasonable advance notice and a fair opportunity to address it. Regarding the finding for mitigation based on "specialized treatment for a mental disorder" under section 921.0026(2)(d), we recently reaffirmed the further requirement for the defense to "establish, by a preponderance of the evidence, that the Department of Corrections cannot provide the required `specialized treatment.'" Ford, 48 So.3d at 950 ( State v....

...The court provided two reasons to support its decision to grant a downward departure to Ms. Torres: (1) "[t]he capacity of the defendant to appreciate the criminal nature of her conduct or to conform that conduct to the requirements of the law was substantially impaired," see § 921.0026(2)(c), Fla. Stat. (2007); and (2) "[t]he defendant suffers from an adjustment disorder, dysthymic disorder, and possibly a mood disorder, not related to substance abuse or addiction, and requires and is amenable to treatment," see § 921.0026(2)(d), Fla....

...Massingill, but that expert's report and testimony were not presented at the downward departure hearing. [6] These disorders are asserted to require "specialized treatment" for purposes of paragraph (2)(d). [7] Among other reasons, mental health "defenses" and mental health mitigators under section 921.0026 may overlap and may be addressed, as here, by the same defense expert....

...in sexual conduct or sexually-explicit situations.” Appellant entered an open, no contest plea to the charges. He expressly acknowledged that the maximum possible penalty for his crimes was 935 years, while the mandatory minimum was 56.66 years. During sentencing, Appellant moved for a downward departure pursuant to section 921.0026(2)(d), Florida Statutes, based on an apparent mental disorder — “Avoidant Personality Disorder.” He presented the testimony of a psychologist who was an expert in forensic and clinical psychology....

...to downward depart from the sentencing guidelines?” The judge responded, saying “[tjhat’s correct.” I — I didn’t think that — that whatever [the expert] testified to was a sufficient basis for departing from the guidelines pursuant to 921.0026(2)(d).......

...rs.”. Id. (quoting Banks, 732 So.2d at 1068 ). Our standard of review is abuse of discretion; “[discretion is abused only where no reasonable person would *1195 agree with the trial court’s decision.” Id. (quoting Banks, 732 So.2d at 1068 ). Section 921.0026, Florida Statutes, addresses the mitigating circumstances in which • a court may....

...et one particular circumstance noted in the statute: “The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d)j Fla....

...of “some legal reason to depart from that sentence.” As noted above, the judge subsequently clarified that he “didn’t think that — that whatever [the expert] testified to was a sufficient basis for departing from the guidelines pursuant to 921.0026(2)(d).” It is clear from the record that the trial court’s ultimate determination was that Appellant failed to satisfy step 1 of the downward departure analysis....

...ve that his treatment "was so specialized that it could not be provided in the Department of Corrections.” The Florida Supreme Court’s opinion in State v. Chubbuck requires no such proof. In fact, it holds the opposite: "the plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC.” Chubbuck, 141 So.3d at 1171 .

...got a license. A downward departure sentence less severe than the lowest permissible sentence shown on the criminal punishment code scoresheet "is prohibited unless there are circumstances or factors that reasonably justify the downward departure." § 921.0026(1), Fla....

...ated according to the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure. See e.g., § 921.002(1)(f) & (3), Fla. Stat. (1999); State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000). Section 921.0026(2) sets forth the circumstances under which a departure from the lowest permissible sentence is reasonably justified. The statutory list of mitigating factors is not exclusive and the trial court may impose a downward departure sentence for reasons not delineated in section 921.0026....

...Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee. STEVENSON, J. Jorge Alonso was charged with and entered a nolo contendere plea to robbery with a deadly weapon. Alonso's lowest permissible sentence was forty-eight months in prison. Pursuant to section 921.0026(2)(j), Florida Statutes (2007), which provides "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse," the trial court imposed a downward departure sentence of two years of community control, followed by three years of probation....

...Merritt, 714 So.2d 1153, 1154 n. 3 (Fla. 5th DCA 1998))). Though we hold that Alonso does not qualify for a departure under subsection (j), the defense supported its motion for a downward departure by contending that Alonso also qualified under sections 921.0026(2)(b) and (e)....

...the trial court departed downward by imposing a sentence of two five-year periods of probation to be served concurrently. The court's reason for the departure was the "unsophisticated nature of the offense." The State appeals the downward departure. Section 921.0026(2)(j), Florida Statutes (2001), provides that one of the non-exclusive grounds for departure is that "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." All three enumerated elements of section 921.0026(2)(j), that the offense was 1) committed in an unsophisticated manner; 2) an isolated incident; and 3) the defendant must show remorse, must exist to constitute a basis for downward departure. E.g., State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003). The three required elements of section 921.0026(2)(j) must be supported by the record....

...sentence was twenty-five years in prison. The trial court sentenced Scherber to one year of community control followed by two years of probation in all three cases, concurrent. The circuit court gave Scherber a sentence below the guidelines based on section 921.0026(2)(d), Florida Statutes (2003), which allows such a sentence when a defendant proves by a preponderance of the evidence that he or she requires specialized treatment for a mental disorder that is not related to substance abuse or add...

...trial court to award a downward departure. Section 921.002(3) states: A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026....

...Parisi, 660 So.2d 372 (Fla. 4th DCA 1995) (trial court may not base downward departure on State's revoked offer); State v. Caride, 473 So.2d 1362 (Fla. 3d DCA 1985) (non-violent nature of crime not sufficient because already contemplated by the guidelines). See also § 921.0026(2)(a)-( l ), Fla....

...e imposed for the violations of the defendant's probation, especially, as here, where the violations are the commission of additional felony offenses. 3. That the need for restitution outweighs the need for prison as to the new felony cases Although section 921.0026(2)(e), Florida Statutes (2009), permits the imposition of a downward departure sentence where the "need for payment of restitution to the victim outweighs the need for a prison sentence," there must be competent substantial evidence...

...The defendant's remorse As the defendant concedes, remorse as a basis for a downward departure must be accompanied by two additional elements: that the offense was committed in an unsophisticated manner and it was an isolated incident. See State v. Salgado, 948 So.2d 12, 16 (Fla. 3d DCA 2006) (finding that section 921.0026(2)(j) permits a downward departure where an offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse, and this ground is valid only where substantial competent evidence supports all three elements)....

...effort to obtain a downward departure sentence. Mr. Camacho's theory for a downward departure was that his "capacity . . . to appreciate the criminal nature of [his] conduct or to conform [his] conduct to the requirements of law was substantially impaired." See § 921.0026(2)(c), Fla....

...Camacho had failed to prove any legal ground for a downward departure in his case. First, it argued that in light of the evidence of self-medication, it was just as likely that Mr. Camacho's drug use was the cause of his impaired capacity as it was that his frontal lobe impairment was the cause and that section 921.0026(2)(c) therefore did not apply. It further argued that the case really involved a need for specialized treatment for a mental disorder that was related to substance abuse and, thus, was not a proper ground for departure under section 921.0026(2)(d). See § 921.0026(2)(d) (authorizing a downward departure where the "defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatmen...

...at 1068. If the trial court accepted all of the testimony presented at the hearing, the record contains competent, substantial evidence to allow the trial court to exercise its discretion to impose a downward departure sentence under section 921.0026(2)(c). This is true even if section 921.0026(2)(d) does not provide a basis for departure and even though a defendant's substance abuse or addiction cannot justify a downward departure.1 The fact that the evidence presented the possibility that substance abuse may have been an independent cause of Mr. Camacho's impaired capacity does not mean that, as a matter of law, section 921.0026(2)(c) is unavailable as a basis for departure. Cf. Daniels v. State, 884 So. 2d 220 (Fla. 2d DCA 2004) (reversing for resentencing in a case involving section 921.0026(2)(d) because the trial court erroneously concluded that it had no authority to impose a downward departure after the defendant's expert testified that the defendant needed treatment for both his mental disorder and his substance abuse). Our difficulty in this case is that we are uncertain whether the trial court's ruling was based on a rejection of some of the expert's opinions or whether it made a 1 Under section 921.0026(3), "[e]xcept as provided in paragraph (2)(m), 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, ju...

...Plea negotiations had reached an impasse because the state would not agree to a withhold of adjudication and probation as a sentence. On the aggravated fleeing and eluding charge, the court sentenced Scriber to 12 months of probation and withheld adjudication. [1] The court found mitigating circumstances under section 921.0026, Florida Statutes (2007), that would justify a downward departure, and ruled that this statute authorized a withhold of adjudication, notwithstanding the language of section 316.1935(6), which provides: Notwithstanding s....

...948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section. Section 948.01, Florida Statutes (2007), generally allows a court to place a defendant on probation or community control and permits a court to withhold adjudication of guilt. Section 921.0026, also a general sentencing statute, sets out the mitigating circumstances that would justify a "downward departure from the lowest permissible sentence." § 921.0026(1), Fla. Stat. (2007). Section 316.1935(6) clearly prohibits a withhold of adjudication for a section 316.1935 violation. Section 316.1935(6) was enacted in 2004, while section 921.0026 was passed in 1998....

...a downward departure from the minimum permissible sentence. See State v. Adkison, 56 So.3d 880 (Fla. 1st DCA 2011) (“A sentence consisting of a suspended prison term followed by probationary period is treated as a downward departure sentence.”). Section 921.0026(1), Florida Statutes, prohibits a downward departure “unless there are circumstances or factors that reasonably justify the downward departure.” In addition, “[a]ny sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.” § 921.002(3), Fla....

...2d DCA 2011). The trial court’s first step is to “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.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). Section 921.0026(2) lists valid mitigating factors which may support a downward departure, but a trial court is authorized to depart for non-statutory reasons as well....

...Further, the trial court must determine if a non-statutory mitigator “is consistent with legislative sentencing policies.” State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008). In this case, the issue is whether the trial court based its departure sentence on a valid legal ground not listed in section 921.0026(2)....

...r a mental disorder” is a mitigating circumstance for which a downward departure may be justified, the trial judge *850 implied that he would not, as a general policy, consider a defendant’s mental health needs as a basis for downward departure. § 921.0026(2)(d), Fla....

...g on his motion. Accordingly, we vacate Lehmkuhle's sentence and remand this case to the trial court to give Lehmkuhle a hearing on his motion to withdraw his guilty plea. Reversed and remanded. CASANUEVA, C.J., and ALTENBERND, J., Concur. NOTES [1] Section 921.0026, Florida Statutes (2007), lists mitigating circumstances the trial court may properly consider when determining whether it should impose a downward departure sentence.

...s objections, the trial court sentenced Joseph to five years probation with special conditions including attending a theft course and payment of restitution in the amount of $290,000. The trial court entered a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (1998), finding that the offense was committed in an unsophisticated manner, and was an isolated incident for which Joseph had shown remorse....

...The appellate court will affirm the trial court's decision on the first step, if the trial court's reason is valid and supported by competent, substantial evidence. See State v. Schillaci, 767 So.2d 598 (Fla. 4th DCA 2000). Here, the trial court's departure was based on a legally valid ground, section 921.0026(2)(j), Florida Statutes (1998), and there was competent substantial evidence supporting the trial court's reason for departing....

...elow the lowest permissible sentence required by the criminal sentencing guidelines unless it articulates in writing a reason for a departure sentence and that reason is supported by competent, substantial evidence. See Fla. R.Crim. P. 3.701(d)(11); § 921.0026(1)-(2), Fla....

...If the defendant's evidence establishes a valid basis for a downward departure sentence and the trial court imposes such a sentence, the trial court must file written reasons supporting the downward departure within seven days after the date of sentencing. § 921.00265(2); State v....

...2d DCA 2005). If the trial court does not file written reasons, a downward departure sentence may nevertheless be affirmed if the record reflects that the trial court made oral findings on the record at the sentencing hearing which support the sentence. § 921.00265(2); see also Pease v....

...t which set forth the sentence offered. The trial court executed a written sentence which was consistent with that announced at the hearing and attached a form which listed mitigating factors to justify a downward departure sentence as enumerated in section 921.0026(2), Florida Statutes (1999)....

...The only exceptions to this rule are when the prosecutor requests "in writing that adjudication be withheld" or if the "court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026." § 775.08435(1)(c)1....

...fense did not "arise from the same transaction" and neither exception applies. We therefore reverse and remand the case to the trial court for either re-sentencing or for legally sufficient written reasons to withhold adjudication in accordance with section 921.0026, Florida Statutes....

...[5] The other written reason, that Gilson was too young to appreciate the consequences of the offenses, and the court's stated reason that the crimes were committed in an unsophisticated manner based on the way in which they were accomplished, are both legally sufficient reasons under the statute. § 921.0026(2)(c), (j) and (k), Fla....

...Finding the trial court’s arbitrary policy of not considering a downward departure sentence based upon a jury returning a verdict of guilt to be a due process violation, resulting in fundamental error, we reverse. At the sentencing hearing, defense counsel was seeking a downward departure sentence pursuant to section 921.0026(1), Florida Statutes (2013), which provides in pertinent part: A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...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. § 921.0026(1), Fla....

...ing scoresheet reflected a minimum sentence of 27.375 months in the Department of Corrections. Appellee sought a downward departure, arguing the offense was committed in an unsophisticated manner, was an isolated incident, and he showed remorse. See § 921.0026(j), Fla....

...The trial court's stated reason for the departure was Sahadeo's need for mental health treatment. If Sahadeo required specialized treatment for a mental disorder and was amenable to treatment, this would constitute a mitigating circumstance justifying a departure sentence. See § 921.0026(2)(d), Fla....

...discretion] in determining that the downward departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case." Id. "[T]he trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2)[, Florida Statutes (2008)], so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited." Id. (citing State v....

...ntence was in the best interest of the defendant. Subido, 925 So.2d at 1057 . The reviewing court should not disturb this determination absent a showing of an abuse of discretion. Id. Accord. State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002). Section 921.0026(2) of the Florida Statutes (2007) sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guidance sentence. State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008). However, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026, as long as the reason given is supported by competent, substantial evidence and not otherwise prohibited....

...age at *637 the time of the offense; thus, he was too young to appreciate the consequences of his actions; and, (3) Leverett’s sentence was proportional to the sentence Harris received. The first two reasons are permissive mitigating factors under section 921.0026(2)(j)-(k) of the Florida Statutes which provides: 921.0026 Mitigating Circumstances.— * * * (2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. (k) At the time of the offense, the defendant was too young to appreciate the consequences of the offense. § 921.0026(2), Fla....

...felonies and misdemeanors). The second reason that the trial court gave for imposing a downward departure sentence, that Leverett was too young to appreciate the consequences of his actions, also is not supported by competent, substantial evidence. Section 921.0026(2)(k), of the Florida Statutes (2007) requires that the defendant must be unable to appreciate the consequences of the offense in order to be eligible to receive a downward departure sentence....

...order.” A downward departure sentence may be imposed where the defendant needs specialized treatment for a mental disorder unrelated to substance abuse or addiction or for a physical disability and where the defendant is amenable to treatment. See § 921.0026(l)(d), Fla. Stat. (2011). 3 The problem in this case is that McEl-roy did not seek a downward departure sentence pursuant to section 921.0026(l)(d)....

...The closest that the trial court came to addressing McElroy’s amenability to treatment was the trial court’s opining that if treatment was available and McEl-roy took advantage of it, there was a “realistic possibility.” The trial court’s finding that a downward departure sentence pursuant to section 921.0026(l)(d) was appropriate is not supported by competent, substantial evidence....

...However, we need not address the continuing vitality of the requirement mentioned above because it is not dispositive to this case given the complete lack of competent, substantial evidence that McElroy suffered from a mental disorder. . McElroy did seek a downward departure based on section 921.0026(2)(j), which permits a departure where the crime was an isolated incident, was committed in an unsophisticated manner, and where the defendant has shown remorse....

...The State also argues that the trial court committed technical errors when it failed to reduce its reason for the downward departure sentence to writing and when it failed to note the departure on the sentencing scoresheet. See Hall, 981 So.2d at 513 (citing § 921.00265(2) and explaining that a trial court must file written reasons for a downward departure within seven days after the date of sentencing; we recognized, however, that a downward departure sentence may still be affirmed where the trial cour...

...rgency (lower court case number 06-14847). The lowest permissible sentence in both cases, as calculated on Gatto's score sheets, was 28.65 months incarceration. Gatto sought, and was granted, a downward departure sentence based upon Florida Statutes section 921.0026(2)(d), (2006) (need for specialized treatment unavailable in prison setting). The State has appealed, arguing that the evidence before the trial court was insufficient to permit the departure. We agree and reverse the departure sentence. Section 921.0026(2)(d) permits a trial court to impose a sentence that is below the lowest permissible sentence where "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction ....

...r other types of therapies for his depression and/or mood disorder that were not available in prison. Further, the statute does not allow a downward departure for specialized treatment which Gatto might require for his substance abuse diagnosis. See § 921.0026(2)(d), Fla....

...red when it sentenced him to the lowest permissible sentence under the Criminal Punishment Code after expressing the erroneous belief that it could not consider as reasons for a downward departure any factors that were not specifically enumerated in section 921.0026, Florida Statutes (2003). The appellant is correct; *396 the statutory mitigating circumstances are not exclusive. See § 921.0026(2), Fla....

...stance. We agree with the state that the trial court’s reason for departure was not supported by competent substantial evidence. Accordingly, we reverse and remand for resentencing. 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....

...es and his prior convictions, this was due to the fact appellee served considerable time in prison on his prior manslaughter conviction. We conclude ap-pellee’s criminal record was significant enough to preclude a downward departure sentence under section 921.0026(2)(j)....

...SHEPHERD, J., and SCHWARTZ, Senior Judge, concur. NOTES [1] This is not a situation where a defendant acknowledged his guilt (or admitted the act but not the intent) and expressed remorse at sentencing in an effort to mitigate his culpability or seek a reduced sentence. See, e.g., § 921.0026(2)(j), Fla.Stat....

...idence presented on the claim. See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (requiring evidence of all three elements—isolated incident, committed in an unsophisticated manner, for which defendant has shown remorse—for departure under section 921.0026(2)(j), Fla....

...After the trial court accepted the plea, but prior to sentencing, defendant provided notice of his intent to depose the victim. Defendant indicated that if the deposition led to evidence that the sexual activity was consensual, it could be used to mitigate the charge of sexual battery. See § 921.0026(2)(f), Fla....

...rotection rights by offering to reduce the defendant’s prison sentence if the defendant and his family paid at least $100,000 in restitution within sixty days. Although the need for restitution can be a basis for a downward departure sentence, see § 921.0026(2)(e), Fla....

...775.082, the sentence required by the [C]ode must be imposed." § 921.0024(2). A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026....

...ed not address the trial court's discretionary determination *364 of whether it should impose a departure sentence. State v. Knox, 990 So.2d 665, 668 (Fla. 5th DCA 2008). Here, neither of the stated grounds for departure is expressly set forth under section 921.0026(2) as a basis for imposing a departure sentence. But the list of mitigating factors under section 921.0026(2) is not exclusive....

...ence of ten years' imprisonment. [5] As suggested by the State, the concepts of acceptance and early acceptance of responsibility set forth under the federal sentencing guidelines are arguably incorporated into the mitigating factors set forth at subsection 921.0026(2)(i) (cooperation) and subsection 921.0026(2)(j) (remorse) of the Code....

...Similarly, restitution is a mitigating circumstance justifying a downward departure from the lowest permissible sentence under the Criminal Punishment Code where the “need for payment of restitution to the victim outweighs the need for a prison sentence.” § 921.0026(2)(e), Fla....

...ly using statutes such as section 921.185 to encourage restitution; the prosecution and defense would have to broach the subject by way of Rule 3.800(c). An important public policy of the state would be frustrated; statutes like sections 921.185 and 921.0026(2)(e) would be constitutionally neutered, not because they are unfair to a defendant who wants to make restitution to obtain a lesser sentence, but because they may not offer the same assistance to a defendant who cannot....

...For noncapital offenses committed on or after October 1, 1998, “the lowest permissible sentence provided by calculations from the total sentence points pursuant to s. 921.0024(2) is assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1), Fla. Stat. (2008). A departure sentence is one that “decreases an offender’s sentence below the lowest permissible sentence” provided by calculations from the total sentence points. § 921.00265(2), Fla. Stat. (2008); see also Fla. R.Crim. P. 3.704(d)(27)(A). A trial court must not impose a downward departure sentence unless mitigating circumstances or factors are present which reasonably justify such a departure. §§ 921.0026(1), 921.00265(1), Fla. Stat. (2008); Fla. R.Crim. P. 3.704(d)(27). Section 921.0026(2) sets forth a nonexclusive list of mitigating factors under which a departure from the lowest permissible sentence is reasonably justified. § 921.0026(2), Fla....

...Because we find that the court erred under the first step, we need not address the second step. At sentencing, the trial court set forth two reasons for a downward departure sentence. First, the trial court found that Lindsay “cooperated with the State to resolve the current offense or any other offense.” See § 921.0026(2)©, Fla....

...Therefore, the trial court was not justified in using Lindsay’s cooperation with law enforcement as a mitigating circumstance. Second, the trial court found that the crime “was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” See § 921.0026(2)(j), Fla....

...ditions; under oath, Chubbuck attested to the veracity of the information in the statement. *920 Pointing to the testimony, Chubbuck asked the court to grant a downward departure, terminate probation, and sentence him to time served. He relied on subsection 921.0026(2)(d), Florida Statutes (2009), which allows a trial court to depart from the "lowest permissible sentence" if "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or...

...On appeal, the state argues that because Chubbuck did not present evidence that the Department of Corrections cannot provide the required specialized treatment, there was no competent, substantial evidence to support the trial court's decision to impose a downward departure sentence under subsection 921.0026(2)(d)....

...iciency only, not its weight. Id. at 1067. Under Florida's sentencing statutes, "[a] downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure." § 921.0026(1), Fla. Stat. (2009). Subsection 921.0026(1) continues by indicating that subsection, 921.0026(2) provides a non-exclusive list of mitigating factors....

...("Mitigating factors to be considered include, but are not limited to, those listed in subsection (2)."). Although the trial court did not cite to a specific statutory section or use the term "mitigating factor," both the state and Chubbuck invoked subsection 921.0026(2)(d), and the court's findings on Chubbuck's health suggest that subsection as the ground for the court's departure. Subsection 921.0026(2)(d) provides that a trial court may depart from the lowest permissible sentence if "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability...

...Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004). Here, the state correctly asserts that Chubbuck offered no evidence that the Department of Corrections could not provide Chubbuck the required treatment for his mental and physical disorders. However, the plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing....

...Because the statute does not make this a requirement, I would conclude that it is not part of the defendant's burden to prove this element in order for the trial court to determine that it can depart from the lowest permissible sentence under the Criminal Punishment Code. Section 921.0026 provides mitigating circumstances "under which a departure from the lowest permissible sentence is reasonably justified...." These include: "(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required....

...crime for which he was being sentenced occurred in 1997, prior to the enactment of the Criminal Punishment Code. However, the statute at the time included the same mitigating factor but no reference to the unavailability of treatment in prison. See § 921.0026(2)(d), Fla....

...g guidelines. Id. at 36. Despite this conflict of opinion between the districts, the courts appear to have turned the one sentence in Abrams into an additional element for the defendant to prove in order to obtain a downward departure sentence under section 921.0026(2)(d), Florida Statutes.1 Our court likewise adopted this element as part of the defendant's burden of proof, without any authority other than the citation of cases, which lead back to Abrams....

...Neither the state nor Chubbuck offered any evidence as to the treatment options available to him at the Department of Corrections. The trial judge properly considered Chubbuck's age and medical conditions as "mitigating factors" that justified a downward departure. This finding was consistent with subsection 921.0026(2)(d)....

...5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998); State v. Ford, 48 So.3d 948, 950 (Fla. 3d DCA 2010); and State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005). Because the state was not on notice of this court's present view of subsection 921.0026(2)(b) at the time of the sentencing hearing, we reverse the sentence to provide the state another opportunity to present evidence as to whether the Department of Corrections can provide the required "specialized treatment." Although...

...GROSS, J., concurs specially with opinion. GROSS, J., concurring specially. I write to emphasize that the record presents reasons for a downward departure that support the circuit court's sentencing decision, in addition to the ground contained in subsection 921.0026(2)(d). For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those "mitigating factors" specified in subsection 921.0026(2). Rather, subsection 921.0026(1) states that a judge is "prohibited" from downwardly departing unless there are circumstances or factors that reasonably justify the downward departure....

...(emphasis added). The statute thus allows the sentencing judge some discretion in identifying those mitigating factors and circumstances that justify a downward departure. Here, in addition to Chubbuck's mental health and physical problems under subsection 921.0026(2)(d), the trial court also considered his age and the fact that he was not a danger to the general public....

...w and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence.” State v. Leverett, 44 So.3d 634, 636 (Fla. 5th DCA 2010) (citing State v. Mann, 866 So.2d 179, 181 (Fla. 5th DCA 2004)). Section 921.0026(2), Florida Statutes (2015), sets forth a list of mitigating circumstances that permit the imposition of a downward departure. Only one reason given by the trial judge at the time of the offense, that Appellee was too young to appreciate the consequences of the offense, is found on that list. § 921.0026(2)(k), Fla, Stat....

...have qualified the defendants for mitigating circumstances to support downward departures. In contrast, the trial court in this case heard testimony and evaluated evidence to determine if the defense had established the mitigating factor provided in section 921.0026(2)(d), Florida Statutes....

...ation requirements of section 943.0435(4), Florida Statutes (2006). In addition, he appeals his sentence contending that the trial court mistakenly concluded it was precluded from considering other mitigating factors besides the statutory factors in section 921.0026(2), Florida Statutes (2006), in determining whether it could downwardly depart from the sentencing guidelines....

...BACKGROUND Kemar Rochester was convicted of lewd or lascivious molestation of a child under the age of twelve in violation of section 800.04(5)(b), Florida Statutes (2008). Prior to sentencing, Rochester filed a motion seeking a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes (2008), which provides for downward departures in sentencing if certain mitigating circumstances are present.2 The trial court found that it had no discretion to impose a downward departure sentence, even though it was inclined to do so, because section 775.082(3)(a)4....

...prison. The Fourth District affirmed the trial court, concluding that the legislature intended to impose a mandatory minimum sentence of twenty-five years’ imprisonment in section 775.082(3)(a)4. Rochester, 95 So. 3d at 410. In so 2. Section 921.0026, Florida Statutes (2008), “applies to any felony offense, except any capital felony, committed on or after October 1, 1998,” and its subsection (2) provides as follows: “Mitigating circumstances under which a departure from the...

... To the contrary, as is generally true with sentencing statutes unless otherwise expressly stated, nothing within section 775.082(3)(a)4. precludes a trial court from imposing a downward departure sentence if the statutory criteria of sections 921.0026 and 921.00265, Florida Statutes, concerning the requirements and mitigating circumstances for which a departure is reasonably justified, are met. This is because, although the sentencing minimum mandated by section 775.082(3)(a)4....

...Because the statute does not set forth a “mandatory minimum” sentence that must be served day-for-day, the statute likewise does not preclude the imposition of a downward departure sentence, which the trial court had the discretion to impose in consideration of the facts of the crime pursuant to section 921.0026(2)(j). Although this Court and the Fourth District did not consider the facts of this crime relevant, the facts do illustrate the excessiveness of the ultimate sentence imposed and help to explain why the trial court would have been justified in considering a downward departure....

...He also stated that he had low self-esteem because he was overweight and that he had apologized to JC’s mom and promised it would not happen again. Prior to sentencing, Rochester filed a motion for a downward departure sentence, pursuant to section 921.0026(2)(j), which provides that “[m]itigating - 12 - circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to . . . [t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026, Fla....

...Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee. PER CURIAM. We find no error in the trial court's imposition of a downward departure sentence, because the defendant met his burden of proving the requirements for a downward departure sentence, pursuant to section 921.0026(2)(d), Florida Statutes (2009), and presented unrebutted testimony that the defendant required specialized treatment for mental health disorders unrelated to substance abuse, which was not available at the Department of Corrections....

...Discretion is abused only where no reasonable person would agree with the trial court's decision." Id. An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure. See § 921.002(3), Fla. Stat. (1999). Section 921.0026, Florida Statutes (1999), sets out a list of mitigating grounds for sentencing departures. Specifically, section 921.0026 provides, in pertinent part, as follows: (1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...de, but are not limited to: * * * (i) The defendant cooperated with the state to resolve the current offense or any other offense. *1202 * * * The list of statutory departure reasons is not exclusive, so departures based on reasons not delineated in section 921.0026, which are supported by the record, may be permissible....

...or depression. The low back pain and major depression doesn't score a lot of points with the court, quite honestly, as any kind of specialized treatment. But, obviously, we have a gentleman here who has some serious medical conditions. So based upon 921.0026[(2)(d)], requiring specialized medical care, I would *56 choose to downward depart....

...Discretion is abused only where no reasonable person would agree with the trial court's decision. (Emphasis supplied). See also State v. Geoghagan, 27 So.3d 111, 113 (Fla. 1st DCA 2009); State v. Resh, 992 So.2d 294 (Fla. 5th DCA 2008). Thus, while the list of statutory departure reasons provided in section 921.0026(2), Florida Statutes (2008), is not exclusive, a downward departure for reasons not set out by statute is permissible only if supported by competent, substantial evidence and not otherwise prohibited. See State v. Voight, 993 So.2d 1174, 1176 (Fla. 5th DCA 2008). Specifically, section 921.0026(2)(d), Florida Statutes, applies to the instant appeal....

...At that time, the defense requested 4 that the court depart below the minimum guidelines sentence of 31.94 years by imposing a lengthy term of imprisonment followed by a lengthy term of probation. The defense argued that the statutory basis for the downward departure was section 921.0026(2)(d), Florida Statutes (2009), which provides that a downward departure may be granted if “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical di...

...udge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish the facts that support a departure from the lowest permissible sentence is a preponderance of the evidence. Section 921.0026(2)(d) further provides that mitigating circumstances include those in which “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and t...

...he contents of their reports, including the source and accuracy of the information they relied upon in forming their opinions as they pertain to Davis’ need for "specialized treatment for a mental disorder that is unrelated to substance abuse[J” § 921.0026(2)(d), Fla....

...e legally imposed. A victim's need for restitution is a valid reason for a downward departure sentence only if competent, substantial evidence shows that "[t]he need for payment of restitution to the victim outweighs the need for a prison sentence." Section 921.0026(2)(e), Fla....

...Furthermore, "there is no reason that restitution could not be made a condition of any post-incarceration probation." State v. White, 755 So.2d 830, 832 (Fla. 5th DCA 2000); see § 775.089, Fla. Stat. (2009); § 948.03(1)(e), Fla. Stat. (2009). Ford argues that although the record does not support the departure under section 921.0026(2)(e), it does support a departure under section 921.0026(2)( l ), Florida Statutes (2009), which allows youthful offender sanctions if the defendant is between eighteen and twenty years old, is pleading guilty to a felony, and has never before been sentenced as a youthful offender....

...However, the trial court made no oral or written findings that it considered youthful offender sanctions as a basis for a downward departure, as is required by statute. See § 921.002(3), Fla. Stat. (2009) ("Any sentence imposed below the lowest permissible sentence must be explained in writing ...."); accord § 921.00265(2), Fla....

...The trial court denied the motion and this appeal followed. Section 921.002(1), Florida Statutes (1998) allows the sentencing court to depart downward from the lowest permissible sentence if there are circumstances or factors that reasonably justify the downward departure. Section 921.0026(2) provides a list of non-exclusive mitigating circumstances which will justify a downward departure, none of which have any applicability to this case. [2] See section *1132 921.0026(1); see also State v....

...State, 746 So.2d 1229 (Fla. 3d DCA 1999). I would sustain the downward departure reason, but allow it only where, as here, the defendant inflicted no harm on the person or property of others. NOTES [1] Sixteenth Judicial Circuit case no. 98-954-CF. [2] According to Section 921.0026(2), mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: (a) The departure results from a legitimate, uncoerced plea bargain....

...ence. See id, § 921.002(l)(f) & (3). A victim’s need for restitution is a valid reason for a downward departure sentence when competent, substantial evidence shows the victim’s need for restitution outweighs the' need for incarceration. See § 921.0026(2)(e), Fla....

...The trial court’s other two grounds for downward departure were similarly legally insufficient or factually unsupported. Contrary to the trial court’s finding, Wheeler did not cooperate with the State to resolve the current offense or any other offense. § 921.0026(2)(i), Fla....

...5th DCA 2008) (“A downward departure sentence is not justified merely because the defendant cooperated after his offense was discovered because that cooperation did not solve a crime.”). Further, the trial court found that Wheeler needed treatment as a basis for a downward departure. However, section 921.0026(2)(m) & (3), Florida Statutes (2014), provides that, unless a defendant scores sixty points or less, substance abuse or addiction does not, under any circumstances, justify a downward departure sentence....

...re is competent substantial evidence to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion. *950 Id. at 15 . Section 921.0026, Florida Statutes (2008), allows a trial court to depart downward from the lowest permissible sentence under the guidelines when the circumstances “reasonably justify the downward departure.” The subsection the trial court relied...

...on (2)(d), which permits a downward departure where: “The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d)....

...zed treatment for a mental disorder that is unrelated to substance abuse or addiction, based on numerous reports in the record detailing his history of mental illness, thus qualifying him for consideration of a downward departure under sec *951 tion 921.0026(2)(d)....

...a violation of section 800.04(5)(b). We affirm. The details of Rochester’s crime are irrelevant to our resolution of the issue in this case. Following Rochester’s conviction, he filed a motion for a downward departure sentence under section *408 921.0026(2)(j), Florida Statutes (2007) 1 , on the grounds that the crime was committed in an unsophisticated manner, it was an isolated incident, and he had shown remorse for his crime....

...e sentence was within the statutory limit. See McCorvey v. State, 872 So.2d 395, 395 (Fla. 1st DCA 2004) (addressing appellant’s claim that the trial court erred when it expressed the belief that it could not consider any factors not enumerated in section 921.0026 for a downward departure sentence); Hines v....

...” in section 775.082(3). Rochester reasons that the use of the word “may” in this context represents an express legislative intent *409 that a twenty-five year mandatory minimum sentence is permissive and, therefore, a departure sentence under section 921.0026(2)(j) is not prohibited....

...Although the aggravated fleeing and eluding statute — section 316.1935, Florida Statutes (2007) — stated that “no court may suspend, defer or withhold adjudication of guilt or imposition of sentence” for such a crime, the trial court found mitigating circumstances under section 921.0026 and entered a downward departure withholding adjudication....

...The State appealed the trial court’s ruling, and this Court reversed. Id. In reaching its holding, this Court reasoned: Section 316.1935(6) clearly prohibits a withhold of adjudication for a section 316.1935 violation. Section 316.1935(6) was enacted in 2004, while section 921.0026 was passed in 1998....

...are controlling because they are the legislature’s last expression of intent and address the specific sentencing for the type of crime committed in this case as opposed to the general mitigating circumstances for sentencing any felony (except a capital felony) contained in section 921.0026....

...We disagree with Montgomery and hold that the legislature intended to impose a mandatory minimum sentence and the rule of lenity does not apply. Accordingly, we certify conflict to the Florida Supreme Court. Affirmed; Conflict Certified. WARNER and POLEN, JJ., concur. . Section 921.0026(2)(j) provides: (2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026(2)(j), Fla. Stat. (2007). . Section 921.0026(1) provides that "[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.” § 921.0026(1), Fla. Stat. The State argues that by its express terms, section 921.0026(1) is limited to those sentences calculable under the Criminal Punishment Code. See §§ 921.002-.0024, Fla. Stat. Therefore, section 921.0026 would not be available to Rochester because section 775.082(3)(a)4....

...I, § 11, Fla. Const. . "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Amend. XIV, § 1, U.S. Const. .See, e.g., § 921.0026(2)(c), Fla....

...State, 134 So.3d 1138 (Fla. 2d DCA 2014), Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014), and Pinder v. State, 128 So.3d 141 (Fla. 5th DCA 2013). On cross-appeal, the State contends that the trial court erred in imposing a downward departure under section 921.0026(2)©, Florida Statutes (2011)....

...2d DCA 2010) (vacating the defendant’s sentences and remanding for resentencing because this court was “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 [section 921.0026(2)(j), Florida Statutes (2005)] upon proof of each element of that subsection”)....

...consideration of remorse and responsibility. A trial court may apply “[a] downward departure from the lowest permissible sentence” if the offense was an isolated incident done in an unsophisticated way and was one “for which the defendant has shown remorse.” § 921.0026(1), (2)(j), Fla....

...its in return for the plea.” Corbitt v. New Jersey, 439 U.S. 212, 219 (1978). These substantial benefits can include sentences lower than what would be possible after trial, or even sentences lower than would be required after trial. Id.; cf. also § 921.0026(2)(a) (authorizing downward departure if it “results from a legitimate, uncoerced plea bargain”)....

...357, 364 (1978) (marks and alterations omitted). To the extent Davis had to choose between maintaining his innocence at sentencing or seeking a more favorable sentence, he was in no different situation than defendants facing plea offers every single day. In fact, had Davis requested a downward departure based on section 921.0026(2)(a)—which requires a showing that there was “a legitimate, uncoerced plea bargain”— the trial court obviously would have rejected the request because Davis did not plead guilty....

...In addition to authorizing trial courts to impose the maximum penalty on a convicted felon for any reason, which necessarily includes the lack of remorse, the Legislature has authorized trial courts to treat a remorseful convicted criminal defendant more leniently. See § 921.0026(1),(2)(j), Fla....

...ature has specifically permitted consideration of remorse. For example, the Florida Legislature has determined that a trial judge may decide that remorse has been sufficiently shown and that leniency is warranted in limited circumstances. See, e.g., § 921.0026(2)(j), Fla. Stat....

..., which calculated to a lowest permissible prison sentence of 73.05 months. Over the State's objection, the trial court imposed concurrent downward departure sentences of 184 days in the Orange County Jail with 184 days of jail credit on all counts. Section 921.0026(1), Florida Statutes (2018), specifically prohibits a trial court from imposing a sentence below the lowest permissible sentence on a defendant's scoresheet "unless there are circumstances or factors that reasonably justify the downward departure." A defendant seeking a downward departure has the burden of presenting competent substantial evidence at the sentencing hearing of at least one of the non-exclusive mitigating factors under *244 section 921.0026(2), Florida Statutes (2018), in support of the requested downward departure sentence....

...If so, the second step is to assess whether the downward departure sentence was the best sentencing option for the defendant under the totality of the circumstances. Lackey , 248 So.3d at 1224 . The present case involves the first step of this analysis. The defendant sought a downward departure under section 921.0026(2)(d), Florida Statutes (2018), which allows for a departure sentence if "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the de...

...tually requires any specialized medical treatment, the nature of his disability, if any, or that he is amenable to treatment as there was no evidence provided of a treatment plan or that the defendant would be amenable to the plan, as required under section 921.0026(2)(d)....

...ust be evidence that there is a reasonable possibility that such treatment will be successful.' " (quoting State v. Hillhouse , 708 So.2d 326 , 327 (Fla. 2d DCA 1998) ) ). Under these circumstances, the downward departure sentence imposed here under section 921.0026(2)(d) was not appropriate. See State v. McElroy , 145 So.3d 866 , 869 (Fla. 2d DCA 2014) (concluding that a downward departure sentence pursuant to section 921.0026(2)(d) was not supported by competent substantial evidence when there was no evidence of an official diagnosis, whether the defendant required specialized treatment, or whether he would even be amenable to such treatment)....

...Either alternative would have been a greater sentence than the thirty years the defendant received. Only the State’s agreement to cap his sentence at thirty years enabled the trial court to depart from imposing the lowest permissible sentence for both counts. See § 921.0026(2)(a), Fla....

...paired. Second, that the offense was an isolated incident that was committed in an unsophisticated manner for which Resh had shown remorse. Both of these reasons are statutory bases and, therefore, permissible legal grounds to downwardly depart. See § 921.0026(c), (j), Fla....

...ence. State v. Champion, 898 So.2d 1111 (Fla. 2d DCA 2005). "[R]epresentations of an attorney alone are insufficient to form a valid basis for departure." State v. Bernard, 744 So.2d 1134, 1135 (Fla. 2d DCA 1999). As to the issue of appellant's age, section 921.0026(2)(k), Florida Statutes, permits a downward departure if "[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense." The trial court knew that appellee was age twenty-two, which would har...

...In the instant case, no evidence was presented that Williams was too young to appreciate the consequences of his offense. The trial court also departed based upon his "confidential diagnosis." An "illness" is not listed as a statutory mitigating circumstance. See § 921.0026, Fla....

...In addition, not only was there no evidence of his illness other than his lawyer's statement, there was no evidence as to how his condition impacted any other ground for mitigation. For example, there was no evidence that Williams required specialized treatment for his illness. See § 921.0026(2)(d), Fla....

...Prior to sentencing, the defendant was found incompetent to proceed based on mental illness. Four months later, after receiving treatment at a competency restoration center, he was found competent and transferred to the county jail. In a written motion, the defendant sought a downward departure sentence pursuant to section 921.0026(2)(c) and section 921.0026(2)(d), Florida Statutes (2017)....

...exhibits the potential to be rehabilitated.”). Here, the psychologist, Dr. Michael Brannon, testified that the defendant was amenable to specialized treatment involving placement in a dual diagnosis residential treatment facility with follow up care, as he 1 Pursuant to section 921.0026(2)(c), the trial court may impose a downward departure sentence where 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.” Pursuant to section 921.0026(2)(d), the trial court may impose a downward departure sentence where the “defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction ....

...point, as the trial court erroneously stated, and there was in fact sufficient evidence to depart. 2 The trial court also erred in failing to consider the other ground for departure put forth by the defendant. There was evidence which could support a departure sentence based on section 921.0026(2)(c)....

... personal commentary, although not unheard of, in his particular case would be more consistent with his paranoid delusions. The trial court did not make any findings regarding whether there was competent substantial evidence supporting departure under section 921.0026(2)(c). For the foregoing reasons, we find that the trial court erred in making a specific finding that it lacked discretion to depart downward with respect to section 921.0026(2)(d) and further by failing to consider whether the evidence supported departure under section 921.0026(2)(c). We reverse the defendant’s sentences and remand for further proceedings before a different judge. Reversed and remanded for further proceedings before a different judge. MAY, J., and HARPER, BRADLEY, Associate Judge...

...We therefore reverse Mr. Crews' sentence of 18 months' imprisonment for delivery of cocaine within 1000 feet of a school. [5] Not only was this sentence contrary to the requirements of section 893.13(1)(c)(1), it was also an improper downward departure. See § 921.0026(3), Fla....

...ess: 1. The state attorney requests in writing that adjudication be withheld; or 2. The court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026....

...The defendant in this case has previously received a withhold of adjudication for a felony offense. Thus, the trial court was required to make written findings that the withholding of adjudication on this subsequent felony offense was justified pursuant to section 921.0026, Florida Statutes (2007)....

...reasons for departure at the time of sentencing." We conclude, however, that the reason orally articulated by the trial court in the instant case is not a valid justification for imposing a second withhold of adjudication for a felony drug offense. Section 921.0026(2), Florida Statutes (2007), provides a list of non-exclusive mitigating circumstances which may justify a downward departure (or a second withhold of adjudication)....

...At sentencing, Torres sought either a youthful offender sentence or a downward departure sentence. Torres presented testimony that he suffered from dysthymia or chronic low-grade depression, that he was amenable to psychotherapy, and that the prison system did not provide such psychotherapy. See § 921.0026(2)(d), Fla....

...(2006) (allowing a downward departure where "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment"). Torres also presented evidence of his cooperation with law enforcement. See § 921.0026(2)(i) (allowing a downward departure where "[t]he defendant cooperated with the state to resolve the current offense or any other offense")....

...court “failed to comport with legislative sentencing policies as interpreted by Florida courts.” State v. Henderson, 108 So.3d 1137, 1141 (Fla. 5th DCA 2013). At resentencing, Henderson again argued for a downward departure, this time based upon section 921.0026(j), Florida Statutes. That section provides for a downward departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(j), Fla....

...it had been some ten months or more before she had had a previous DUI.” The trial court then re-imposed the identical sentence that was originally imposed. Florida’s sentencing scheme requires the trial court to impose a sentence that comports with the guidelines unless a *51 valid basis for departure is established. See § 921.0026, Fla. Stat. Section 921.0026(j) cannot, and should not, be read to mean that as long as the defendant has never committed the exact offense for which he or she is currently being sentenced, the offense can be considered isolated regardless of the defendant’s criminal history....

...An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure. See also State v. Stephenson, 973 So.2d 1259, 1262-63 (Fla. 5th DCA 2008). None of the grounds utilized by the trial court to mitigate the sentence are established by statute. See generally § 921.0026, Fla....

...t is unrelated to substance abuse or addiction, or for a physical disability, and that she is amenable to treatment, and 3) the offense was committed in an unsophisticated manner and was an isolated incident for which Appellee has shown remorse. See § 921.0026(2)(j), Fla....

...However, "drug rehabilitation. . . does not constitute a valid legal ground for a downward departure sentence;" therefore, a departure sentenced based on this reason cannot be affirmed. State v. Owens, 848 So.2d 1199, 1203 (Fla. 1st DCA 2003). See also § 921.0026(3), Fla. Stat. (2008) ("the defendant's substance abuse or addiction . . . does not, under any circumstances, justify a downward departure. . . ."); § 921.0026(2)(d), Fla....

...lined to do it again will not support a downward departure in these two cases because the court did not find (because there is no evidence) that the charged crimes constituted an isolated incident and were committed in an unsophisticated manner. See § 921.0026(2)(j), Fla....

...These points are added together and, after additional calculations not relevant here, the resulting score (represented in months) establishes a defendant’s “lowest permissible sentence” which “is assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1), Fla. Stat. (2012). The trial court may not impose a sentence below the lowest permissible sentence unless there is a valid mitigating circumstance to justify a downward departure. § 921.0026(1), Fla. Stat. (2012). Section 921.0026(2) provides a non-exclusive list of mitigating circumstances for a valid downward departure. While a trial court may depart for a reason other than those set forth in section 921.0026(2), it may only do so if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited....

...d the statute and the rule each requires a court imposing a downward departure to file, within seven days of the sentencing, either a written order or a copy of the hearing transcript, setting forth the basis for the downward departure. See § 921.00265(2); Fla....

...must be served before the party’s first brief is served”) (emphasis added). Because the motion to correct sentencing error was served untimely, the order rendered thereafter was untimely, and cannot be deemed valid under rule 3.704, rule 3.800(b)(2) or section 921.00265(2).5 See Miran v....

...4th DCA 2008), it had no discretion to impose a downward departure sentence. We reverse. At sentencing, the defense produced extensive evidence of Colletta’s long-standing mental illness, and argued for a sentence below the guidelines range pursuant to section 921.0026(2)(d), Florida Statutes (2009), which allows a downward departure sentence if the defendant needs specialized treatment for a mental disorder and is amenable to treatment....

...tified include, but are not limited to: [[Image here]] (d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment. § 921.0026(2)(d), Fla....

...However, since the sentencing and while this matter was on appeal this court in an en banc opinion receded from our holding in Gatto. See State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012). As we noted in Chubbuck , this court in Gatto supplemented the plain language of section 921.0026(2)(d) with a further requirement that the defendant must establish, by preponderance of the evidence, that the DOC cannot provide the required specialized treatment. The plain language of subsection 921.0026(2)(d) does not require the defendant to make such a showing....

...Torres, the driver, and the two passengers, his friends, had been drinking together before the single-car crash. Mr. Torres’ criminal punishment code scoresheet reflected a minimum prison sentence of 242.2 months (20.183 years). He argued at sentencing that section 921.0026(2)(f), Florida Statutes (2008), allowed for a downward departure where the victims were willing participants in the incident. Alternatively, he argued that section 921.0026(2)(j) applied because the offenses were isolated, committed in an unsophisticated manner, and because he was remorseful. The trial court rejected the latter ground but found that section 921.0026(2)(f) applied....

...ar homicide where victim provided alcohol to eighteen-year-old and allowed him to drive her automobile and causal connection is found between victim’s conduct and defendant’s recklessness). We vacate the downward departure sentence imposed under section 921.0026(2)(f). However, the trial court legally erred when it found section 921.0026(2)(j) inapplicable. Its reliance on section 921.0026(3) and State v....

...uired elements are shown. State v. VanBebber, 848 So.2d 1046, 1049 (Fla.2003) (holding that statutory mitigator that offense was committed in an unsophisticated manner, was isolated incident, and defendant was remorseful applied in DUI case and that section 921.0026(2)(j) applies to DUI offenses and section 921.0026(3) *563 does not preclude its application); Kezal v....

...eat to society, and isolated incident in DWI case, but factors taken into consideration by the guidelines cannot). Accordingly, we affirm Mr. Torres’ judgments, vacate the sentences, and remand for the trial court to reconsider the sentences under section 921.0026(2)(j)....

...at 1068 . This aspect of the court’s decision is reviewed for abuse of discretion. Id. A trial court may depart where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse ” § 921.0026(2)(j), Fla....

...2d DCA 2010). On resentencing, the trial court must use the proper standard in determining whether to depart on this ground. Appellant also challenges the denial of a departure on the grounds that he “cooperated with the state to resolve” another offense. § 921.0026(2)(i), Fla....

...y not withhold an adjudication of guilt unless either the State requests it or the court makes written findings reasonably justifying the withholding of an adjudication of guilt based on circumstances or factors in accordance with those set forth in section 921.0026, Florida Statutes (2011), which outlines mitigating factors that a court may consider in determining whether to impose a downward departure sentence....

...The trial court heard extensive argument during these entire proceedings, held a lengthy sentencing hearing, and was clearly aware of its ability to withhold an adjudication of guilt if so warranted. To the extent Senger is arguing that because the court separately. found sufficient grounds under section 921.0026 to impose the downward departure sentence, the court was required to withhold an adjudication of guilt, we disagree....

...Because the offense was committed in an unsophisticated manner and was an isolated incident for which appellant had shown remorse, the trial court departed downward and sentenced him to 84 months incarceration followed by 10 years probation with an early release after 5 years if all conditions were satisfied. See § 921.0026(2)(j), Fla....

...ity control followed by probation that the court imposed on Hardie. Hardie requested and received this downward departure sentence based on his claim that the church’s need for restitution outweighed the need for his imprisonment as allowed for by section 921.0026(2)(e), Florida Statutes (2009). However, because Hardie failed to present competent, substantial evidence to support his request, the trial court abused its discretion in imposing this sentence. Section 921.0026 lists several circumstances under which a downward departure sentence may be appropriate. In particular, section 921.0026(2)(e) states that the court may depart downward when “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence.” Competent, substantial evidence must exist to support the chosen departure reason. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). In regard to section 921.0026(2)(e) specifically, the defendant must present “some evidence of the victims’ needs ” in order to qualify for a downward departure....

...utes (2007), is prohibited absent competent substantial evidence that supports cireum- *883 stances or factors that reasonably justify departure under the law. The record fails to support departure on either of the grounds the trial court relied on. § 921.0026(2)(e) (Need for Restitution) Pursuant to section 921.0026(2)(e), the “Need for Restitution” only qualifies as a mitigating circumstance justifying a downward departure when “the need for payment of restitution to the victim outweighs the need for a prison sentence.” See also Demoss v....

...r that need outweighed the obligation to impose the punishment Adkison earned under the Criminal Punishment Code Scoresheet the Legislature has statutorily mandated. Thus, a need for restitution cannot justify a downward departure under these facts. § 921.0026(2)(j) (Unsophisticated Manner) Pursuant to section 921.0026(2)(j), the “Unsophisticated Manner” of the crime qualifies as a mitigating circumstance under which a departure from the lowest permissible sentence is reasonably justified if “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The plain language of section 921.0026(2)(j) indicates departure is warranted if three elements are established: (1) The offense must be committed in an unsophisticated manner; (2) The offense constitutes an isolated incident; and (3) The defendant must show remorse. Record evidence must exist to find each of these elements. Accepting arguendo Adkison showed remorse at the mitigation hearing sufficient to satisfy section 921.0026(2)(j), it remains difficult to understand how the trial court came to the conclusion that the other two elements were supported by the evidence....

...partment of Corrections. At the hearing, Henderson argued for a downward departure sentence. Henderson was seeking an alternative residential program instead of jail. The State was opposed to a downward departure sentence. The State pointed out that section 921.0026(3), Florida Statutes (2012), disallows use of substance abuse or addiction as a basis for a downward departure under any circumstances. The State also argued that section 921.0026(2)(m), Florida Statutes, did not apply because of Henderson’s resisting an officer with violence....

...Henderson’s counsel argued that the trial court could consider non-statutory reasons for departing downward. Over the State’s objection, the court again imposed a downward departure sentence. The court explained: *1139 And over objection, I’m going to find a downward departure under 921.0026. I still feel that rehabilitation is in the best interest of this defendant as opposed to the need for incarceration. Therefore, under the — under 921.0026(2), which permits me to find a downward departure for grounds that are not necessarily limited to subpara-graphs A through M, I find that a downward departure is needed for Ms....

...can never be used as a mitigating factor. The State further argued that the fact that Henderson’s son needed his mother in his life was also not a valid reason for a downward departure sentence. The trial court expressed the view that in drafting section 921.0026(3), the legislature meant a person could not get “liquored up” and then blame their crime on their substance abuse or dependency, not that rehabilitation from a drug or alcohol addiction could not support a departure in *1140 an appropriate case....

...The provision of criminal penalties is a matter of predominantly substantive law determined by the legislature. State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). The trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited....

...in the case pending before it. Id. Here, the trial court’s finding that a downward departure sentence is needed in order for Henderson to be rehabilitated from her addiction to alcohol is not a valid legal ground for a downward departure sentence. Section 921.0026(3), Florida Statutes (2012), provides: Except as provided in paragraph (2)(m), 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. The trial court’s interpretation of section 921.0026(3), Florida Statutes-that it precludes using substance abuse or addiction as an excuse for criminal conduct justifying a downward departure, but does not preclude a downward departure for rehabilitation—is a reasonable and sensible interpretation of the statute. The positive features of such an interpretation may be many, as this case illustrates. However, this Court and other courts have read section 921.0026(3) to mean that substance abuse or addiction cannot be the basis of a downward departure, even if couched in terms of rehabilitation....

...(2004) (providing that “Level 10” -5- could depart downward from the lowest permissible sentence if mitigating circumstances or factors were present, although the judge would have to justify in writing the reasons for the departure. § 921.00265(1)-(2), Fla....

...life sentence based on two statutory mitigators: (1) The victim was the initiator, willing participant, or the aggressor of the incident; and (2) the crime was committed in an unsophisticated manner, was an isolated incident, and Landrum showed remorse. See § 921.0026(2)(f) and (j), Fla....

...ctive that a sentencing court could consider as a mitigating circumstance when departing downward from the term-of- years sentence that, “[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense.” § 921.0026(2)(k), Fla....

...tences. As for the trial court's statutory reasons for departure, the trial court erred in concluding that departure sentences were warranted based on the fact that the defendant's crimes were isolated incidents for which he showed remorse. Section 921.0026(2)(j) of the Florida Statutes (2017) authorizes the imposition of a departure 2 sentence when the "offense was committed in an unsophisticated manner and was an isolated incident fo...

...e, this reason for departure is invalid. Next, the trial court erred in imposing the downward departure sentences based on the fact that the need for the payment of restitution to the victim outweighed the need for a prison sentence. See § 921.0026(2)(e), Fla....

...In this case, the defendant failed to present any evidence regarding the loss sustained by the victim; therefore, this ground for departure is not supported by the evidence. The trial court's finding that departure was warranted based on the defendant's undiagnosed mental illness is also invalid. Section 921.0026(2)(d) of the Florida Statutes (2017) authorizes the imposition of a departure sentence when a defendant "requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disa...

...ns: 1) “The victim was an initiator, willing participant, aggressor, or provoker *1232 of the incident” 1 and 2) “The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)©, (j), Fla....

...ce."). "A trial court must impose a guidelines sentence unless the court finds that the evidence supports a valid reason for a departure sentence." State v. Barnes, 753 So. 2d 605, 606 (Fla. 2d DCA 2000). One potential valid reason, section 921.0026(2)(e), Florida Statutes, provides that a downward departure beneath the lowest permissible sentence under the Criminal Punishment Code may be issued if "[t]he need for payment of restitution to the victim outweighs the need for a...

..., or that restitution would be effective, we do not find competent, substantial evidence in this -5- record to justify a departure beneath the Criminal Punishment Code's minimum prison sentence under section 921.0026(2)(e)....

...stantial evidence supports its ruling.” Id. at 1067-68 . The defendant has the burden of proof to establish the facts that support a downward departure by a preponderance of the evidence. State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000). Section 921.0026 establishes that a trial court is prohibited from giving a downward departure from the lowest permissible sentence under the Criminal Punishment Code “unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla....

...One statutory ground justifying a downward departure is when a defendant “requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla....

...h the testimony of the defendant and conclude that he was amenable to treatment. In addition, the expert testified that the specialized treatment the defendant needed was not available in the prison system, a requirement for downward departure under section 921.0026(2)(d)....

...r five years by staying on his extensive medication regimen and eating a “good balanced diet” and that if he did not do those things, he “may make it to three [years].” Defense counsel sought a downward departure sentence in part pursuant to section 921.0026(2)(d), Florida Statutes (2013), which provides as a mitigating circumstance for a departure sentence a situation where a “defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addict...

...In making this determination, a court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. Id. The second aspect of the decision is a “judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion.” Id. Under section 921.0026(2)(d), Florida Statutes (2013), a defendant seeking a downward departure sentence must prove by a preponderance of the evidence that he or she has a mental disorder unrelated to substance abuse or addiction or a physical disability f...

...A defendant need not prove that the required specialized treatment is unavailable in the Department of Corrections. Chubbuck, 141 So.3d at 1171 . Appellant argues on appeal that the trial court failed to reach the issue of whether he presented sufficient evidence to support a downward departure sentence under section 921.0026(2)(d) based upon the court’s erroneous conclusion that it did not “think” that it had a “legally sufficient reason to deviate.” The State argues that the trial court’s ruling that a balanced diet and taking the proper med...

...“just [did not] see that [it had] a legally permissible reason to downward depart.” Although this latter statement provides an indication that the court found that Appellant' failed to present sufficient evidence of the necessary elements under section 921.0026(2)(d), we cannot say for certain based upon the court’s other statements and the fact that the State acknowledged Appellant’s “pretty undeniable medical conditions.” It is unclear whether the trial court rejected Appellant’s request for a downward departure sentence based upon a misconception as to its authority to depart under the plain language of section 921.0026(2)(d) or based upon a finding that Appellant failed to present sufficient evidence to support a departure sentence under the statute....

...and reversing the appellant’s sentence and remanding for the trial court to reconsider the sentence in light of its discretion to depart if the facts warranted). 1 *174 If the trial court determines on remand that Appellant proved the elements of section 921.0026(2)(d) by a preponderance of the evidence, it must then determine whether it should depart or, in other words, whether departure is.the best sentencing option for Appellant....

...cause she failed in her efforts to raise the final $1847.17 owed to the victim. There is something morally repugnant about such a plea agreement. We fully understand that the need for restitution can be a basis for a downward departure sentence. See § 921.0026(2)(e), Fla....

...sentence was thirty-nine months in prison. However, the court sentenced Burt to two years of drug offender probation followed by three years of standard probation with various special conditions. The court explained that it was departing downward pursuant to section 921.0026(2)(j), Florida Statutes (2014), because the offenses were committed in an unsophisticated manner and were isolated incidents for which Burt had shown remorse....

...ing and mitigating factors.” Id. at 1068 . The burden is on the defendant to prove a basis for a downward departure sentence by a preponderance of the evidence. State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). 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....

...Although the State did not dispute that Burt committed the offenses in an unsophisticated manner and was remorseful, we agree that both the nature and timing of Burt’s prior offenses preclude the finding that the current offenses were isolated, as required by section 921.0026(2)(j)....

...to cross-examine the defendant during an allocution. Indeed, there is little reason for the State to do so as the purpose of the allocution is for the defendant to speak to the judge. Downward departure hearings however have their own set of rules. Section 921.0026, Florida Statutes (2018), entitled “Mitigating Circumstances,” enumerates the circumstances under which a trial court can depart from the lowest permissible sentence....

...nd in the case pending before it.”). “A sentence that departs downward from the sentencing guidelines must be supported by competent substantial evidence.” Barnes, 753 So.2d at 607 . Although extreme duress is a mitigating factor enumerated in section 921.0026(2), Florida Statutes (2002) (“The defendant acted under extreme duress or under the domination of another person.”), duress usually involves some sort of coercion or threat, see Black’s Law Dictionai°y 542 (8th ed.2004)....

...Jackson's criminal punishment code scoresheet indicated a lowest permissible sentence of 28.95 months in prison. If a "trial court wishes to depart downwardly from the indicated guidelines sentence, it must announce or write its valid reasons for doing so." State v. Marshall, 869 So.2d 754, 756 (Fla. 5th DCA 2004); see also, § 921.0026(1), Fla....

...Over the State’s timely objection, the lower court withheld adjudication on all three counts without issuing written findings. Fureman’s sentencing scoresheet provided that his lowest permissible sentence was sixty-three months of incarceration. The lower court downwardly departed pursuant to section 921.0026(2)(j), Florida Statutes (2011), on the basis that Fureman committed the offenses in an unsophisticated manner, the offenses were isolated and uncharacteristic, and Fureman showed remorse....

...“[T]he appellate court must determine whether the trial court applied the correct rule of' law and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence.” Id. 1 The lower court downwardly departed pursuant to section 921.0026(2)(j), Florida Statutes (2011), which is a statutory basis and, therefore, is a permissible legal reason to downward depart....

...istication. The trial court reasoned that because Fureman did not post the advertisement, he committed the offenses in an unsophisticated manner. A separate statutory basis exists for a victim’s initiation as a ground for a downward departure. See § 921.0026(2)(f), Fla....

...four sales of a small amount of cocaine to the same confidential informant in December in an attempt to provide for his children during Christmas. Id. at 551 . Randall addressed only whether the lower court relied on a valid reason contained within section 921.0026 to downward depart from a guideline sentence....

...rting, the first (no criminal record), second (sold cocaine around Christmas to support his family), and fifth (showed remorse) reasons to depart could be combined under a totality of the circumstances analysis to satisfy one mitigating factor under section 921.0026....

...te attorney requests in writing that adjudication be withheld,” or “[t]he court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in [section] 921.0026.” § 775.08435(l)(b) 1., 2., Fla....

PER CURIAM. Appellant appeals the trial court’s denial of his motion for downward departure under section 921.0026(2)(d), Florida Statutes (2012)....

...1 At the conclusion of appellant’s sentencing hearing, the trial court made several references to appellant not having called a witness from the Department of Corrections to testify. In State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we found that the plain language of section 921.0026(2)(d) does not require a defendant to prove that the Department of Corrections “cannot provide the specialized treatment required” in order for a trial court to grant a downward departure under that subsection....

...A "(mjitigating circumstance[ ] under which a departure from the lowest permissible sentence is reasonably justified” includes when a "defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla....

...The defendant accepted the court’s downward departure offer and pled no contest to the remaining charges in both cases. The court entered a sentencing order which mirrored its downward departure offer. The order stated that the downward departure sentences were “justified under Fla. Stat. 921.0026 as the [defendant was experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse.” This appeal followed....

...Second, we must determine whether the trial court abused its discretion in finding that the downward departure sentences were the defendant’s best sentencing option. Id. Applying this mixed, two-part review, we conclude that the trial court erred in imposing the downward departure sentences. Section 921.0026(1), Florida Statutes (2011), provides: A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to [the criminal punishment code], 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). 921.0026(1), Fla....

...The trial court’s ground for the downward departure sentences—that the defendant was “experiencing great difficulty in his personal life due to his divorce which made him more susceptible to substance abuse”—is not one of the mitigating factors listed in section 921.0026(2). However, “the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” Simmons, 80 So.3d at 1092 ....

...Abrams, 706 So.2d 903 (Fla. 2d DCA 1998); State v. Johnson, 696 So.2d 1328 (Fla. 3d DCA 1997). Under the current Criminal Punishment Code, [1] which applies to this case, the sentencing judge must supply reasons for departing downward in all cases. See § 921.00265(1) and (2), Fla....

...The scales of justice have now tipped in favor of the state. NOTES [1] We note that even if reversal on this ground were not appropriate, the reason given for the downward departure is not supported by the present record. [1] § 921.002, et seq., Fla. Stat. [2] § 921.0026(2)(a), Fla....

...While Johnson's sentencing scoresheet resulted in a minimum guidelines sentence of 51 months of imprisonment, the trial court sentenced him to two years of imprisonment. The State argues on appeal that the downward departure, imposed pursuant to subsection 921.0026(2)(c), Florida Statutes (2008), was not justified under the facts of this case....

...onth thereafter." § 943.0435(14)(b), Fla. Stat. (2007) (emphasis added). This change in the law apparently altered Johnson's reporting requirements. At the sentencing hearing, Johnson argued for the application of two mitigating factors pursuant to section 921.0026, Florida Statutes (2008). Only subsection 921.0026(2)(c) is relevant to this appeal....

...a valid legal ground and whether there was adequate factual support for that ground based on the specific facts of this case. As such, the issue revolves around whether Johnson's lack of knowledge of the change in the registration law implicated subsection 921.0026(2)(c), which allows a trial court to depart when "[t]he capacity of the defendant to appreciate the criminal nature of the conduct . . . was substantially impaired," to the extent that it was a legally valid reason for a downward departure. Based on subsection 921.0026(2)(c)'s plain language, we agree with the State that the trial court erred in applying the substantially-impaired-capacity mitigating factor....

...understand the nature and effect of one's acts." Knowledge is defined, however, as "[a]n awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact." Id. at 888. For section 921.0026(2)(c) to apply, it is not enough that a defendant simply not know that what he was doing was criminal or wrong; the defendant must have been unable to understand that what he was doing was criminal or wrong. Johnson's claim was that he did not know of the change in the sex offender registration law, not that he did not understand it. Thus, the circumstance that serves as a factual predicate in this case for the application of subsection 921.0026(2)(c) is knowledge— not capacity. It therefore is not a valid legal ground upon which a downward sentence can be granted. [1] While the trial court's compassion and legal rationale to justify its findings are honorable, they do not support a basis under 921.0026(2)(c) for the granting of a downward departure. Notably, justifying *149 a 921.0026(2)(c) downward departure based on the facts provided this court would run counter to the maxim that ignorance of the law is no excuse for criminal conduct. See Roberts v. State, 26 Fla. 360, 7 So. 861, 862 (Fla.1890) ("Ignorance of law is no excuse for the commission of an offense against the law."). Accordingly, we hold that the trial court misapplied subsection 921.0026(2)(c)....

...reover, he did not remember the entire incident." Id. The trial court granted a downward departure because, among other reasons, the defendant's capacity was substantially impaired at the time of the offense. Id. This court affirmed, holding that subsection 921.0026(2)(c) provided a valid basis for the downward departure. Id. at 1250. Although cases like Fontaine do not foreclose the possibility that capacity could apply to a situation such as Johnson's, they do suggest that subsection 921.0026(2)(c) is understood to involve mental capacity.

...re. State v. Solomon, 667 So.2d 937 (Fla. 2d DCA 1996). The trial court may suspend the incarcerative portion of a recommended sentence only if a valid reason for a downward departure *53 exists. State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999). Section 921.0026(2), Florida Statutes (2002), provides numerous mitigating circumstances on which a trial court may base a downward departure sentence. One such circumstance is that "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." § 921.0026(2)(d)....

...ort — 364 days, 60 days, or 60 minutes — solely within the presumably unreviewable discretion of the trial court. 7 Martinez initially escaped a 21.15 month sentence because the State agreed to a downward departure as part of a plea bargain. See § 921.0026(2)(a), Fla....

...If *1016 the total points exceed 44, the court must subtract 28 points and multiply by 75 percent. The resulting number is the minimum number of months in state prison that the offender must serve. However, the court may find that one or more of the mitigating circumstances at s. 921.0026, F.S., warrants a downward departure, except for capital felonies....

...Scriber, 991 So.2d 969 (Fla. 4th DCA 2008), “[section 316.1935(6) clearly prohibits a withhold of adjudication for a section 316.1935 violation.” Id. at 970 . We further held that section 316.1935 prevailed over the downward departure statute, section 921.0026, Florida Statutes, for two reasons....

...(internal quotations and citation omitted). Second, because “section 316.1935(6) specifically addresses sentencing under section 316.1935 ... [t]he more specific statute is *101 considered to be an exception to the general terms of the more comprehensive statute [section 921.0026].” Id....

...pact of the loss on Travelers. A trial court's downward departure decision will be affirmed on appeal where the reason given for the departure sentence is valid and is supported by the evidence. State v. Schillaci, 767 So.2d 598 (Fla. 4th DCA 2000); § 921.0026(2), Fla....

...of the loss, the efficacy of restitution, and the consequences of imprisonment. A victim's need is a valid basis for a downward departure sentence only if competent, substantial evidence shows the victim's need outweighs the need for incarceration. § 921.0026(2)(e), Fla....

PER CURIAM. The State seeks review of the trial court’s downward departure sentence arguing that the downward departure sentence given Carlos Stephens, appellee, is contrary to section 921.0026(1), Florida Statutes (2011) (“A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...A downward departure sentence—i.e., a sentence less severe than the lowest permissible sentence shown on the Criminal Punishment Code scoresheet—"is prohibited unless there are circumstances or factors that reasonably justify the downward departure." § 921.0026(1), Fla. Stat. (2001); see also § 921.00265(1)....

...The trial court stated on the record that the mitigating circumstances justifying the downward departure were that the need for payment of restitution outweighed the need for a prison sentence and that Scott cooperated with the State to resolve another offense. See § 921.0026(2)(e), ( l )....

WALLIS, J. The State appeals the downward departure sentence given to Appellee by the trial court, arguing that no valid legal basis existed for the departure under section 921.0026(2)©, Florida Statutes (2013)....

...ssible] sentence under the [Code] is not commensurate with the seriousness of the crime.” (quoting State v. Baker, 498 So.2d 1031, 1032 (Fla. 1st DCA 1986))). The trial court did not address the State’s objection, instead concluding: Pursuant to 921.0026(a) 2 — well, excuse me — (1), the Court is going to downward depart....

...Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006) (finding that the State’s general objection was sufficient where “it is clear from the hearing transcript that the trial court was aware of the legal errors associated with its ruling”). The presence of all three elements of section 921.0026(2)(j) is necessary to justify a downward departure under that subsection....

...ecluded the trial court’s finding that his most recent crime was an isolated incident. The lack of the second element alone clearly requires reversal of the trial court’s downward-departure sentence. We need not address the other two elements of section 921.0026(2)(j)....

...Accordingly, we reverse the downward departure sentence and remand for further proceedings. REVERSED and REMANDED. LAMBERT and EDWARDS, JJ., concur. . Because we find that Appellee’s offense clearly was not an isolated incident, we need not address the other two elements — unso *1119 phistication and remorse — of section 921.0026(2)©. . The subsection actually referenced by the trial court is section 921.0026(2)©, Florida Statutes (2013), which provides: "The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”

...Florida law provides that a trial court must, at a minimum, impose the lowest permissible sentence on a criminal defendant calculated according to the Criminal Punishment Code, unless the court finds that the evidence supports a valid reason for a downward departure. § 921.00265(1), Fla....

...A trial court is permitted to impose a downward departure sentence when a defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, or for a physical disability, provided the defendant is amenable to treatment. § 921.0026(2)(d), Fla....

...Because the statute does not make this a requirement, I would conclude that it is not part of the defendant’s burden to prove this element in order for the trial court to determine that it can depart from the lowest permissible sentence under the Criminal Punishment Code. Section 921.0026 provides mitigating circumstances “under which a departure *1020 from the lowest permissible sentence is reasonably justified.......

...that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required....

...crime for which he was being sentenced occurred in 1997, prior to the enactment of the Criminal Punishment Code. However, the statute at the time included the same mitigating factor but no reference to the unavailability of treatment in prison. See § 921.0026(2)(d), Fla....

...g guidelines. Id. at 36. Despite this conflict of opinion between the districts, the courts appear to have turned the one sentence in Abrams into an additional element for the defendant to prove in order to obtain a downward departure sentence under section 921.0026(2)(d), Florida Statutes....

...ble to him in the Department of Corrections. We conclude, however, that the trial judge properly considered Owens’s mental condition as a mitigating factor that justified a downward departure. This finding was consistent with the plain language of section 921.0026(2)(d)....

...1st DCA 2011). This Court reviews departure sentences to determine whether the grounds for departure were supported by competent, substantial evidence. Id. Here, the trial court stated that it was imposing a downward departure sentence pursuant to section 921.0026(2)(j), Florida Statutes, because the crimes were committed in an unsophisticated manner and was an isolated incident for which Appellee had shown remorse....

RAY, J. The State of Florida timely appeals a downward departure sentence imposed upon Sammy Perlman for two felony petit theft charges. Among other grounds, the State argues that the departure was erroneous because it was premised on section 921.0026(2)0, Florida Statutes (2012), and Mr....

...For the purposes of this appeal, we need only consider step one: whether a valid legal ground, supported by evidence, applies in this case. See State v. Jerry, 19 So.3d 1167, 1169 (Fla. 1st DCA 2009) (citing Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)); see also § 921.0026(1), Fla....

...t applied the “right rule of law” and the ruling is supported by competent, substantial evidence. Jerry, 19 So.3d at 1169 (quoting Banks, 732 So.2d at 1067 ). The trial court applied a valid legal ground for its downward departure as provided by section 921.0026(2)(j)....

...This provision authorizes a trial court to depart from the lowest permissible sentence if the evidence shows (1) the offense was committed in an unsophisticated manner, (2) the offense was an isolated incident, and (3) the defendant has shown remorse. § 921.0026(2)(j)....

...Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005); State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004). Focusing on the second element, Florida courts have held that extensive criminal history alone precludes the finding that an offense was “an isolated incident” under section 921.0026(2)(j)....

...hen decide whether the trial court was correct in determining that the downward departure sentence was in the best interest of the defendant." Leverett, 44 So. 3d at 636 (citing State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006)). Section 921.0026(2), Florida Statutes (2016), sets forth a non-exhaustive list of mitigating circumstances that permit the imposition of a downward departure sentence. In this case, the trial court relied on the following grounds: (b...

...ed. 5  .... (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026(2), Fla....

...The burden rests on the defendant to "prove these elements, or other mitigating factors, before the trial court will depart." Wallace v. State, 197 So. 3d 1204, 1205 (Fla. 1st DCA 2016) (citing State v. Jones, 122 So. 3d 517, 518 (Fla. 1st DCA 2013)). We first address the trial court's departure under section 921.0026(2)(j)....

...offense must have been 'committed in an unsophisticated manner,' (b) the offense must have been 'an isolated incident,' and (c) the defendant must have 'shown remorse' for the offense." State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (quoting § 921.0026(2)(j), Fla....

...rugs to his friend "to do him a favor." In light of Milici's testimony, we find that no competent, substantial evidence supports the 7 trial court's finding that he showed remorse as contemplated by section 921.0026(2)(j). See, e.g., Ayers, 901 So. 2d at 945 ("It is impossible for a defendant who refuses to accept responsibility for an offense to show remorse for that offense."). For these reasons, we find that the trial court abused its discretion insofar as it relied on section 921.0026(2)(j) as a basis for downward departure. We next address the trial court's departure under section 921.0026(2)(b), which provides that the trial court may impose a downward departure sentence where "[t]he defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct." § 921.0026(2)(b), Fla....

...minor participant" with regard to his charges for sale of controlled substances simply because he sold narcotics to a confidential informant. See State v. Holsey, 908 So. 2d 1159, 1161 (Fla. 1st DCA 2005) (reversing downward departure based upon section 921.0026(2)(b) where defendant sold narcotics to an undercover officer during a sting operation). Accordingly, 8 we find that no competent, substantial evidence supports the trial court's downward departure under section 921.0026(2)(b). Finally, we address the trial court's departure under section 921.0026(2)(c). "For section 921.0026(2)(c) to apply, it is not enough that a defendant simply not know that what he was doing was criminal or wrong; the defendant must have been unable to understand that what he was doing was criminal or wrong." State v....

...Johnson, 79 So. 3d 146, 148 (Fla. 4th DCA 2012). However, "[t]he fact that the evidence presented the possibility that substance abuse may have been an independent cause of [the defendant]'s impaired capacity does not mean that, as a matter of law, section 921.0026(2)(c) is unavailable as a basis for departure." Camacho v. State, 164 So. 3d 45, 48 (Fla. 2d DCA 2015). Here, no competent, substantial evidence supports the trial court's findings regarding section 921.0026(2)(c)....

...ntered the plea. In addition, although the trial court noted that Milici had a history of mental illness, it failed to articulate how that mental illness "substantially impaired" his ability to "appreciate the criminal nature of the conduct." See § 921.0026(2)(c), Fla....

...d theft. Hiraldo argues that the court erred in determining that she failed to establish a legal basis to impose a downward departure sentence based on her need for specialized treatment for a mental disorder. We agree and reverse. Section 921.0026(2)(d), Florida Statutes (2016), provides for a departure from the lowest permissible sentence under the Criminal Punishment Code1 when "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to subs...

...to treatment." Hiraldo claimed that she suffers from and requires specialized treatment for bipolar disorder. The trial court indicated an inclination to impose a downward departure sentence, but it ultimately concluded that Hiraldo did not meet the legal criteria in section 921.0026(2)(d) and imposed the lowest permissible sentence....

...months' probation in this battery case, asserting that the court lacked competent, substantial evidence to impose the departure sentence. Specifically, it argues that there was insufficient evidence that the victim provoked the incident within the meaning of section 921.0026(2)(f), Florida Statutes (2011).1 Because the downward departure sentence lacks competent, substantial evidence to support it, we reverse and remand for resentencing. Herbert Pinckney, the defendant, pleaded to the battery of a woman with whom he had a relationship....

...he guideline scoresheet, unless the court recites a valid basis for a downward departure. See State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002); see also § 921.002(l)(f), (3), Fla. Stat. The legal grounds for a departure sentence are set forth in section 921.0026, Florida Statutes....

...Over the State’s objection, the court found that the downward departure was warranted because Reith was a minor participant in the offenses and the charged crimes were committed in an unsophisticated manner and were isolated incidents. These findings would support a downward departure sentence under section 921.0026(2)(b) and (j), Florida Statutes (2007), if they were supported by compe *910 tent, substantial evidence....

...The jury found appellant guilty on all counts as charged. At sentencing, appellant moved for a downward departure sentence, based on his need for specialized treatment for a mental disorder (unrelated to substance abuse or addiction) and his amenability to treatment, pursuant to section 921.0026(2)(d), Florida Statutes....

...r burglary of a dwelling. We affirm, finding sufficient evidence in the record to support the trial court’s decision not to impose a guidelines sentence, as well as the trial court’s determination that there was “domination,” according to section 921.0026(2)(g), Florida Statutes (2015). Sisco was charged in the amended information with burglary of a dwelling. At trial, she admitted that she was guilty of trespassing, but that she had no part in the commission of the burglary of the dwelling....

...The trial court rejected Sisco’s contention that the crime was committed in an unsophisticated manner, that it was an isolated incident, and that she had shown remorse. Instead, the trial court found that Sisco qualified for a downward departure sentence pursuant to section 921.0026(2)(g), Florida Statutes (2015), because Sisco acted “under the domination of another person.” The trial court stated: 4  I sat here. I listened to it. And I am quite convinced by the requisite degree that what does apply here -- let me find it -- is 921.0026(g), the defendant acted under extreme duress....

...A ground for downward departure has been proven in this case by virtue of the evidence presented at trial and during the sentencing hearing. Specifically, the Court finds that a downward departure is warranted pursuant to Section 921.0026(1)(g), Florida Statutes in that the Defendant acted under the domination of another person. 2....

...d.” Zack v. State, 753 So. 2d 9, 19 (Fla. 2000). Based on the record before us, we cannot say the trial court abused its discretion in sentencing Sisco. The ground the trial court relied on for the departure is authorized by statute. See § 921.0026(2)(g), Fla....

appropriate in other circumstances, see, e.g., § 921.0026(2)(j), Fla. Stat. (2019), but those circumstances

...Parrish was sixteen years old at the time of the offenses. A jury found Parrish guilty on all counts. At sentencing, Parrish presented evidence to support a downward departure sentence on the ground that he requires specialized treatment for a disorder. See § 921.0026(2)(d), Fla. Stat....

...“because the first purpose of sentencing is to punish . . . .” State v. McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010). A downward departure sentence is nevertheless permitted if there are “circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla....

...As stated in the written downward departure order, the departure reason is that the “victim brought the weapon to the fight.” Under the sentencing guidelines, the downward departure reasons include: “The victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0026(2)(f), Fla....

...lowest permissible sentence on a criminal defendant calculated according to the Criminal Punishment Code, unless the court finds that the evidence supports a valid reason for a downward departure.” State v. Owens, 95 So. 3d 1018, 1019 (Fla. 5th DCA 2012) (citing § 921.00265(1), Fla....

...2d at 1068. Reference to the applicable statutes reveals that the only statutory ground Rankin could have pursued based on his counsel’s argument was that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla....

the trial judge’s ground for departure was section 921.0026(2)(k), Florida Statutes, (2002), which permits

...Public Defender, West Palm Beach, for appellee. LEVINE, J. The defendant pled nolo contendere to two counts of aggravated assault with a deadly weapon and one count of battery. The trial court granted defendant’s motion for downward departure based on section 921.0026(2)(j), Florida Statutes (2019), over the state’s objection....

....” The victim also told the police of two other incidents where the defendant hit the victim in the face. In mid-August 2019, the defendant “backhanded” the victim to her nose and eye. The defendant filed a motion for downward departure pursuant to section 921.0026(2) arguing two grounds: (1) the victim was the initiator, willing participant, aggressor, or provoker of the incident pursuant to section 921.0026(2)(f), and (2) the defendant’s conduct was an isolated incident, it was committed in an unsophisticated manner, and the defendant had shown remorse pursuant to section 921.0026(2)(j). The trial court ultimately granted downward departure based only on section 921.0026(2)(j). During the sentencing hearing, two witnesses were called to testify as to the defendant’s character, aspirations, and accomplishments, but neither could testify as to the charged incidents....

...tial evidence supports the trial court’s reason for imposing a downward departure sentence.” Id. In the second step, the appellate court then decides whether the trial court abused its discretion in granting a downward departure motion. Id. Section 921.0026(2)(j) allows for a downward departure only when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” This court must reverse if it finds that any of the three elements are unsupported by competent substantial evidence....

...the maximum sentence which the trial judge can impose”)). 3 (emphasis added). A defendant’s need for (and amenability to) specialized treatment of a physical disability is a valid reason for departure. § 921.0026(2)(d), Fla. Stat. (2013); see Childers v. State, 171 So. 3d 170, 171–72 (Fla. 1st DCA 2015) (explaining that defense counsel sought a downward departure under § 921.0026(2)(d), based on the defendant’s “cirrhosis of the liver, gastrointestinal problems, and internal bleeding,” and noting that the state acknowledged defendant had “‘some pretty undeniable medical conditions’”). Decla...

...urger King. The driver of the car, who had gotten out to look for his friend, looked back and saw what was happening. He ran to the car, and managed to reach in and put the car in neutral. The driver then began struggling with Appellant’s 1 See § 921.0026(2)(l); § 958.04, Fla....

...rison. The State argues, and Daniels concedes, that the trial court improperly imposed a downward departure sentence, based on an alleged “legitimate, uncoerced plea bargain,” since the State was not a party to any plea bargain with Daniels. See § 921.0026(2)(a), Fla....

...Pamela Jo Bondi, Attorney General, and Quentin Humphrey and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee. PER CURIAM. Appellant challenges the denial of his motion for a downward departure sentence brought pursuant to section 921.0026, Florida Statutes (2014) (addressing mitigating circumstances)....

...Fulks to concurrent five-year terms of imprisonment for both cases. The State appealed only the sentence imposed in the newer case. The downward departure sentence in the newer case must be reversed. “Mutual mistake of law” is not a valid basis for departure. See § 921.0026(1), Fla....

...with a minor who was sixteen or seventeen at the time of the offense. She was a teacher at a college where she met the victim. He was a high school student in a dual enrollment program at the college. At sentencing, she sought a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2018), which provides that mitigating circumstances exist where “The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction ....

...(footnotes omitted.) The issue in this case involves Step 1 — whether there is a valid ground to depart. In this case, the court erred in concluding that the mental disorder must be connected to the criminal behavior in order to constitute a ground for departure. Section 921.0026(2)(d) provides that a mitigating circumstance, for which a court may order a downward departure, is that “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for...

...She testified that appellant’s current behavior is part of her bipolar disorder and is related to the criminal behavior. The State offered no evidence to the contrary. Appellant also contends other grounds for downward departure were present. Section 921.0026(2)(f), Florida Statutes (2018) provides a separate mitigator if “[t]he victim was an initiator, willing participant, aggressor or provoker of the incident.” The court mentioned below that there was a lack of evidence that the victim was a willing participant....

a defendant’s cooperation for purposes of section 921.0026(2)(i), Florida Statutes, which provides that

...ode Scoresheet). We have jurisdiction. See art. V, § 2(a), Fla. Const. The Supreme Court Criminal Court Steering Committee (Steering Committee) proposes an amendment to rule 3.992(b) in light of chapter 2012-36, section 3, Laws of Florida, amending section 921.0026(2), Florida Statutes (2012) (effective October 1, 2012)....

...not prohibit the trial court from fulfilling its obligation to impose criminal sanctions. See Kirby v. State, 863 So. 2d 238, 242 (Fla. 2003). A victim’s need for restitution is a valid reason for departure from the sentencing guidelines under section 921.0026(2)(e), if the evidence shows that the victim's actual need outweighs the need for imprisonment....

...Here, sufficient evidence supported a legal ground for departure as “[t]he defendant require[d] specialized treatment for a mental disorder that [was] unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla....

...churches, schools in such a way as to provide more serious damage and harm to the community than would be the normal case. At the same time, the Court has to be mindful of the provisions of chapter 921.0026 and the factors that have been presented here....

...Under the CPC, the lowest permissible sentence calculated in the offender’s scoresheet is “the minimum sentence that may be imposed by the trial court, absent a valid reason for departure.” § 921.0024(2), Fla. Stat. (2011); see also § 921.00265(1), Fla. Stat. (2011) (“A departure sentence is prohibited unless there are mitigating circumstances or factors present as provided in s. 921.0026 which would rejected that argument based upon McCloud and ruled that “the scoresheet is correct, as filed, based on the information to which Mr....

...5 reasonably justify a departure.”). The trial court “may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026.” § 921.002(3), Fla. Stat. (2011). The mitigating factors and circumstances that may be considered by the trial court in determining whether to impose a downward departure sentence “include, but are not limited to” those listed in section 921.0026(2). § 921.0026(1), Fla. Stat. (2011); see also State v. Henderson, 108 So. 3d 1137, 1140 (Fla. 5th DCA 2013) (“The trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.”); McCorvey v. State, 872 So....

...lea is not a legally valid reason for departure. See Geoghagan, 27 So. 3d at 113. A defendant’s plea only provides justification for downward departure when there has been a “legitimate, uncoerced plea bargain” with the State. Id.; see also § 921.0026(2)(a), Fla....

...possible sentence only if there are circumstances or factors to support the 2 departure; a trial court may not impose a downward departure in the absence of such circumstances or factors. §§ 921.0024(2), 921.0026(1), Fla....

...Id. In this case, competent, substantial evidence does not support the trial court's finding regarding Appellant's medical condition. In order to establish 3 that a downward departure sentence was warranted pursuant to section 921.0026(2)(d), Appellee was required to prove the following three elements: (1) that he has a physical disability which (2) requires specialized treatment, and (3) that he is amenable to that treatment....

...2d DCA 2019) (holding that an experienced psychologist's testimony, if found to be credible, is competent, substantial evidence). 1 We recognize that the trial judge issued a written memorandum explaining that the departure was based on non-statutory mitigating factors in accordance with section 921.0026(1), which states that mitigating factors include, but are not limited to, the statutory factors listed in section 921.0026(2)....

...address the specialized nature of dialysis as a treatment, or whether Appellee is amenable to such treatment. Third, a defendant's testimony as to his medical condition, on its own, has been found to be insufficient to support a downward departure under section 921.0026(2)(d)....

...Finally, an attorney's representations are insufficient to support a downward departure. See State v. Teal, 831 So. 2d 1254, 1255 (Fla. 2d DCA 2002). 5  Therefore, because there was no evidence as to either specialized treatment or amenability as required by section 921.0026(2)(d) to support a downward departure, we reverse and remand for a new sentencing hearing....

...When police arrived, Platt provided a false name. She later provided her real name and confessed to the crime, but not before first claiming she went to the bank because 2 cooperated with the State to resolve the current offense. 2 See § 921.0026(2)(i), (2)(j), Fla....

...for a second-degree felony on the basis that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” there must be competent, substantial evidence to support all three elements. § 921.0026(2)(j), Fla....

...It did so belatedly after Platt filed a Florida Rule of Criminal Procedure 3.800(b) motion advising the trial court of the sentencing error. 4 cooperated with the State to resolve the current offense. 2 See § 921.0026(2)(i), (2)(j), Fla....

...for a second-degree felony on the basis that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” there must be competent, substantial evidence to support all three elements. § 921.0026(2)(j), Fla....

...Her plan consisted of several distinctive steps, including a sympathetic tale to explain her actions, a threat to prevent the police from being alerted, and a cover story prepared in the event she was caught. As for cooperation, courts have found that a downward departure is warranted under section 921.0026(2)(i) if the defendant cooperated with the State to resolve the current offense or any other offense....

...On appeal, Lawton argues that the trial court impermissibly considered his lack of remorse when imposing sentence.1 For the reasons discussed below, we vacate Lawton’s sentence and remand for resentencing before a different judge. I. FACTUAL AND PROCEDURAL BACKGROUND Pursuant to section 921.0026(2)(d), Florida Statutes (2015), Lawton filed a motion for a downward departure based on the grounds that he required specialized treatment for his physical disabilities and was amenable to treatment....

...t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse”). A review of the record shows that the only statutory ground Lawton pursued was based on “physical disability.” § 921.0026(2)(d), Fla....

...e served. The State objected on the ground that the sentence fell below the sentencing guidelines. We reverse because the downward departure sentence was not supported by any written reasons, and the oral reasons given were legally insufficient. See § 921.0026, Fla....

...As the State argues, and as the trial court acknowledged below, any duress Appellee, Daniel Leander McCall, was facing at the time he committed the offenses at issue is not the duress intended by the Legislature in its list of mitigating circumstances justifying a downward departure sentence in section 921.0026(2), Florida Statutes....

...There was no evidence presented in the underlying cases that Appellee acted under coercion or threat.  As for the trial court’s finding that Appellee was emotionally distressed when he committed the offenses, a trial court may impose a downward departure sentence for reasons not delineated in section 921.0026(2) if the reason given is supported by competent, substantial evidence and is not otherwise prohibited. See State v....

...The trial court found appellee guilty and imposed a downward departure sentence, finding his "perception of danger was real and reasonable." A trial court may not impose a sentence that departs from the statutory guidelines "unless there are mitigating circumstances or factors present as provided in s. 921.0026." § 921.00265, Fla. Stat. (2006). Section 921.0026, Florida Statutes (2006), provides a non-exclusive list of mitigating circumstances that reasonably justify departure....

...Appellee pled no contest to multiple offenses arising out of a “road rage” incident that started when she and the victim exchanged words in a Whataburger drive-thru line. The trial court adjudicated Appellee guilty and imposed a downward departure sentence pursuant to section 921.0026(2)(d), Florida Statutes (2013), finding that Appellee required and was amenable to specialized treatment for her bipolar disorder....

...As to step 1 (whether there was a valid legal ground on which the trial court could depart), the prosecutor argued that “[t]he evidence is that [Appellee’s] specialized treatment is nothing more than taking her prescription, and I don’t believe . . . that is the type of specialized treatment that [section 921.0026(2)(d)] is designed to address.” And, as to step 2 (whether the trial court should depart), the prosecutor argued that the court should not do so because in this case, we’re talking about a defendant with a lengthy...

...hearing not presented at his earlier sentencing” and “the resentencing court was not limited to the evidence presented, or not presented, at the original sentencing.” Id. On remand, the court shall consider any evidence relevant to a downward departure, consistent with section 921.0026, Florida Statutes (2019). Reversed and remanded. WARNER, GROSS and CONNER, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing....

...These points are added together and, after additional calculations not relevant here, the resulting score (represented in months) establishes a defendant’s “lowest permissible sentence” which “is assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1), Fla. Stat. (2012). The trial court may not impose a sentence below the lowest permissible sentence unless there is a valid mitigating circumstance to justify a downward departure. § 921.0026(1), Fla. Stat. (2012). Section 921.0026(2) provides a non-exclusive list of mitigating circumstances for a valid downward departure. While a trial court may depart for a reason other than those set forth in section 921.0026(2), it may only do so if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited....

...d the statute and the rule each requires a court imposing a downward departure to file, within seven days of the sentencing, either a written order or a copy of the hearing transcript, setting forth the basis for the downward departure. See § 921.00265(2); Fla....

...must be served before the party’s first brief is served”) (emphasis added). Because the motion to correct sentencing error was served untimely, the order rendered thereafter was untimely, and cannot be deemed valid under rule 3.704, rule 3.800(b)(2) or section 921.00265(2).5 See Miran v....

...uling." State v. Hudson, 153 So. 3d 375, 377 (Fla. 2d DCA 2014) (quoting State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006)). Here, the trial court found that Mr. Bellamy qualified for a downward departure sentence based on section 921.0026(2)(d), Florida Statutes (2015), which provides that a trial court may depart from the lowest permissible sentence if a "defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addicti...

...sentencing hearing to substantiate Mr. Bellamy's claims. We are therefore required to reverse. In State v. McElroy, 145 So. 3d 866, 869 (Fla. 2d DCA 2014), this court held that the trial court's downward departure sentence pursuant to section 921.0026(1)(d) was not supported by competent, substantial evidence where there was no evidence of an official diagnosis, no evidence regarding whether the appellee required specialized treatment, and no evidence regarding whether the appellee would be amenable to treatment....

ability to enter a downward departure sentence. See § 921.0026, Fla. Stat. Defense counsel stated that if the

...The State raises several issues, none of which we need to address because Mr. Rahal’s counsel concedes ineffective assistance of counsel in the sentencing process. Based on the record before us, we reverse and remand for a new evidentiary hearing on Mr. Rahal’s motion to mitigate his sentence. See § 921.0026(2), Fla....

...Albertine, Jr., Assistant Public Defender, Bartow, for Appellee. SMITH, Judge. The State appeals the sentence imposed by the trial court after Harlan Caulkins' probation was revoked, sentencing him below his lowest permissible sentence under the criminal punishment code scoresheet based upon section 921.0026(1), Florida Statutes (2023), which allows for a downward departure when there are "circumstances or factors that reasonably justify the downward departure." Because competent substantial evidence does not support the trial court's b...

...Caulkins violated his probation by committing the new criminal offense and scheduled a sentencing hearing for a later date. Mr. Caulkins moved for a downward departure from the lowest permissible sentence—43.8 months per his scoresheet—based on section 921.0026(1), arguing physical abuse during his upbringing, alcohol and drug addiction, and general past hardships as nonstatutory mitigating "factors that reasonably justify the downward departure."1 Mr....

...Caulkins' mother wrote that Mr. Caulkins had witnessed his father beating her when he was three years old and that Mr. Caulkins' father was an alcoholic who abandoned Mr. 1 Mr. Caulkins also sought a downward departure based on certain mitigating factors under subsections 921.0026(2)(i) and (j), which are not relevant here and which were denied. 2 Caulkins and her and his sisters just before Mr....

...and therefore should be a basis for mitigation." For these reasons, the trial court ruled it would depart downward from the lowest permissible sentence of 43.8 months and sentenced Mr. Caulkins to one year and one day in prison with 247 days' credit for time served. Section 921.0026(1) "specifically prohibits a trial court from imposing a sentence below the lowest permissible sentence on a defendant's scoresheet 'unless there are circumstances or factors that reasonably justify the downward departure.' " State v. Schuler, 268 So. 3d 242, 243 (Fla. 5th DCA 2019) (quoting § 921.0026(1), Fla. Stat. (2018)). Enumerated in section 921.0026(2) is a nonexclusive list of mitigating circumstances justifying a departure from the lowest permissible sentence....

...Caulkins was substantially impaired because of the combination of his "upbringing, the poor environment in which he was raised, the abuse he has suffered, [and] his prior addictions." We see no distinction between these purported nonstatutory mitigating circumstances2 and section 921.0026(2)(c)—"[t]he 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." Accordingly, we apply the same analysis as we would to a downward departure under section 921.0026(2)(c). 2 "The parameters of nonstatutory mitigation are largely undefined." Consalvo v....

...3d DCA 2002), sentencing entrapment, United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996), and a lower sentence of an equally or more culpable codefendant, Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987). But, as stated above, a factor enumerated in section 921.0026(2) is not a valid nonstatutory mitigator. 6  A defendant is not required to offer expert medical testimony to establish a lack of capacity,3 but such testimony is often critical in making that showing....

...r burglary of a dwelling. We affirm, finding sufficient evidence in the record to support the trial court’s decision not to impose a guidelines sentence, as well as the trial court’s determination that there was “domination,” according to section 921.0026(2)(g), Florida Statutes (2015). Sisco was charged in the amended information with burglary of a dwelling. At trial, she admitted that she was guilty of trespassing, but that she had no part in the commission of the burglary of the dwelling....

...The trial court rejected Sisco’s contention that the crime was committed in an unsophisticated manner, that it was an isolated incident, and that she had shown remorse. Instead, the trial court found that Sisco qualified for a downward departure sentence pursuant to section 921.0026(2)(g), Florida Statutes (2015), because Sisco acted “under the domination of another person.” The trial court stated: I sat here. I listened to it. And I am quite convinced by the requisite degree that what does apply here -- let me find it -- is 921.0026(g), the defendant acted under extreme duress....

...A ground for downward departure has been proven in this case by virtue of the evidence presented at trial and during the sentencing hearing. Specifically, the Court finds that a downward departure is warranted pursuant to Section 921.0026(1)(g), Florida Statutes in that the Defendant acted under the domination of another person. 2....

...d.” Zack v. State, 753 So. 2d 9, 19 (Fla. 2000). Based on the record before us, we cannot say the trial court abused its discretion in sentencing Sisco. The ground the trial court relied on for the departure is authorized by statute. See § 921.0026(2)(g), Fla....

...may not withhold an adjudication of guilt unless either the State requests it or the court makes written findings reasonably justifying the withholding of an adjudication of guilt based on circumstances or factors in accordance with those set forth in section 921.0026, Florida Statutes (2011), which outlines mitigating factors that a court may consider in determining whether to impose a downward departure sentence. In this case, the State did not request that the court withhold an adjudication of guilt....

...ese entire proceedings, held a lengthy sentencing hearing, and was clearly aware of its ability to withhold an adjudication of guilt if so warranted. To the extent Senger is arguing that because the court separately found sufficient grounds under section 921.0026 to impose the downward departure sentence, the court was required to withhold an adjudication of guilt, we disagree. Second, we conclude that the trial court correctly designated Senger as a sex offender....

...911 system. Hansen entered an open plea of no contest to the charges and moved for a downward departure of his sentence, seeking a withhold of adjudication of guilt as to the false report of a bomb charge. As grounds for departure, Hansen relied on section 921.0026(2)(d), Florida Statutes, asserting he required specialized treatment for a mental disorder unrelated to substance abuse, addiction, or for a physical disability. Hansen presented testimony in support of the asserted grounds for departure....

...4th DCA 2012) (holding that the statutes which “are the legislature’s last expression of intent and address the specific sentencing for the type of crime committed in this case” control over “the general mitigating circumstances for sentencing any felony (except a capital felony) contained in section 921.0026.”); see also State v....

...es, coconspirators, or principals; instead, it provides for a reduction or suspension of the sentence, which pertains to the length of incarceration or supervision. Additionally, although section 790.163 was initially enacted in 1959, as compared to section 921.0026, the downward departure statute, which went into effect in 1998, subsection 2 of section 790.163 was subsequently added in 2002. 2002 Fla. Sess. Law Serv. Ch. 2002-28 § 1. Thus, section 790.163(2) containing the prohibition against withholding adjudication for false report of a bomb threat was enacted after section 921.0026, the downward departure statute....

...Imber's lowest permissible guidelines sentence was calculated at 25.8 years' imprisonment. The trial court departed downward and sentenced Mrs. Imber to terms of community control and probation on the basis that the victim was a "willing participant" in the theft of his own money pursuant to section 921.0026(2)(f), Florida Statutes (2007)....

...Id. The legislature has directed that 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." § 921.0026(1). The legislature has enumerated a nonexhaustive list of mitigating circumstances or factors which "reasonably justify" downward departure. § 921.0026(2)(a)-(n). One enumerated circumstance for a -2- reasonably justified downward departure is if the "victim was an initiator, willing participant, aggressor, or provoker of the incident." § 921.0026(2)(f). At trial, the victim's physician testified that, in 2007, Mrs....

... Mrs. Imber's lowest permissible sentence was 25.8 years' imprisonment. The sentencing court departed downward based on its determination that the victim was a "willing participant" in the grand theft and money laundering incidents pursuant to section 921.0026(2)(f)....

...ip. In no uncertain terms, the legislature has prohibited trial courts from departing downward from the lowest permissible sentence unless there are circumstances or factors demonstrating that the departure is reasonably justified. § 921.0026(1)....

...manslaughter case, where a drunk driver crashed and killed his also-drunk passengers). We thus hold that the trial court erred by departing downward on the basis that the victim was a willing participant in Mrs. Imber's theft of his own money pursuant to section 921.0026(2)(f)....

...tructure, possession of burglary tools, and criminal mischief. During the sentencing hearing, the prosecutor represented that restitution was $100 to replace a broken window. Over the state’s objection, the court imposed a mitigated sentence under section 921.0026(2) (e), Florida Statutes, based on the court’s opinion that the victim’s need for restitution outweighed the need for a prison sentence. A trial court’s decision to mitigate a sentence under section 921.0026(2)(e) is reviewed for competent, substantial evidence that the victim’s need for restitution outweighs the need for incarceration....

...After denying Radice’s motion for new trial, the court addressed Radice’s motion for downward departure from sentencing guidelines. 2 The minimum sentence under the sentencing guidelines was 40.35 months in prison. Radice moved for a downward departure under section 921.0026(2)(j), Florida Statutes (2017), arguing that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The court granted his motion for a downward depar...

...Second, the court must determine whether it should depart. Id. at 1068 (footnote omitted). Here, we address whether there was evidence to support the legal ground the court relied on to depart. In granting the downward departure, the court relied on section 921.0026(2)(j), Florida Statutes (2017), which allows a court to grant a downward departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” But when a trial court relies “solely on this mitigator, [section 921.0026(2)(j)], all three elements must be shown.” State v....

...Perlman, 118 So. 3d 994, 996 (Fla. 1st DCA 2013) (reversing and remanding for resentencing where the defendant’s criminal record was “too extensive under established case law to permit a finding that the offenses at issue were isolated incidents” under section 921.0026(2)(j)); State v....

...It is undisputed that the first prong of the two-step process was satisfied. Gibbs presented numerous witnesses who- testified about his character and his remorse over having caused the death of a friend. Consequently, the trial judge determined that Gibbs established grounds for a downward departure under section 921.0026(2)(j), Florida Statutes....

...m the Guidelines and sentence him to six months in the Palm Beach County Jail. *904 The State argues that the trial court failed to submit a written basis for departure and that its oral basis for departure was not a valid reason for departure under section 921.0026(2), Florida Statutes (2009)....

...Appellee’s scoresheet reflected a lowest permissible sentence of 58 months in prison, but after a hearing at which Appellee and her psychologist testified, the trial court imposed a downward departure sentence of 11 months and 30 days in jail, followed by 10 years of probation. The court relied on section 921.0026(2)(d), Florida Statutes (2013), which authorizes a downward departure when the court finds that “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction ....

...from that order—we affirm. I A After a jury convicted Gazoombi of felony battery for his involvement in a barroom altercation—but before sentencing—he moved for a downward departure under section 921.0026, Florida Statutes, seeking a sentence more lenient than the lowest one ordinarily allowed. See § 921.00265(1), Fla. Stat. (providing for a “lowest permissible sentence” and prohibiting a sentence below (i.e., a “departure sentence”) “unless there are mitigating circumstances or factors present as provided in s. 921.0026 which reasonably justify a departure”). Gazoombi presented three statutorily enumerated bases for a sentence below the calculated lowest permissible sentence: 4 1) the “capacity of the defendant to appreciate the criminal nature...

...ctim was the initiator of the altercation”; and 3) the “defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(c)−(d), (f), Fla. Stat....

...trial court’s consideration of whether it could depart downward, based both on what the law allows as mitigating circumstances and on whether there was evidence to support an extant mitigating factor for departure. See §§ 921.002(3), 921.0024(2)–(3), 921.0026(1)–(2), 921.00265(1)–(2), Fla....

...(“The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure.”); § 921.0024(3), Fla. Stat. (“A single digitized scoresheet shall be prepared for each defendant to determine the permissible range for the sentence that the court may impose.”); § 921.0026(1), Fla....

...(“A downward departure 9 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.”); § 921.00265(1), Fla. Stat. (“A departure sentence is prohibited unless there are mitigating circumstances or factors present as provided in s. 921.0026 which reasonably justify a departure.”); cf....

...These two actions have distinctly different legal consequences. The Criminal Punishment Code creates a lowest permissible sentence, and specifies that a “downward departure from the lowest permissible sentence” without proper statutory support is “prohibited” and “subject to appellate review.” § 921.0026(1), Fla. Stat. An improper departure, one not justified by a statutorily defined departure ground, is an error subject to correction. In contrast, a sentence within the permissible range is not an error subject to correction. No statutory counterpart to section 921.0026(1) permits a defendant to challenge a decision to sentence within the permissible range rather than to depart....

...defendant held with respect to the victim, and the emotional and psychological damage that the defendant has caused the victim. 2  The trial court was well within its prerogative, based on the record before it, to impose a sentence at the cap. Section 921.0026(1), Florida Statutes, prohibits a trial court from imposing a sentence below the lowest permissible sentence calculated based on sentencing points “unless there are circumstances or factors that reasonably justify the downward depa...

...And sexual addiction is part of the problem. That leads to other addictions. *1165 On cross-examination, Michels testified that even though he was struggling with alcoholism when he moved to Florida, he knew he was required to register’. The State pointed out that under section 921.0026(3), Florida Statutes, a defendant’s substance abuse or addiction does not provide justification for a downward departure....

...The level of proof necessary to establish facts supporting a departure is a preponderance of the evidence. § 921.001(4)(a)(6), Fla. Stat. We assess the record evidence for its sufficiency only, not its weight. Banks, 732 So.2d at 1067 . State v. Strawser, 921 So.2d 705, 707 (Fla. 4th DCA 2006). Section 921.0026(2) provides a non-exhaustive list of mitigating factors. Subsection (j), relied on in the present case, allows for a departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla....

not a valid statutory basis for departure. See § 921.0026. The statutory basis for a downward departure

...McGhee contends that the trial judge erred in determining that, as a matter of law, DUI cannot be committed in an unsophisticated manner, and in imposing the special conditions on his probation. This court has held that the crime of DUI cannot be committed in an unsophisticated manner, as contemplated by section 921.0026(2)(j), Florida Statutes (Supp....

...See State v. Tuttle, 177 So. 3d 1246, 1253 (Fla. 2015). The defendant also challenges his sentence on the aggravated battery conviction, arguing that the court erred in rejecting his request for a downward departure sentence pursuant to section 921.0026(2)(d) of the Florida Statutes (2016)....

...asoning would violate with the ruling in State v. Chubbuck, 141 So. 3d 1163 (Fla. 2014). 2 See § 784.03, Fla. Stat. (2016). 2  In Chubbuck, our Supreme Court considered “whether subsection 921.0026(2)(d) requires the defendant to prove that the required specialized treatment he [or she] needs is unavailable in the DOC.” 141 So. 3d at 1168. The court concluded: [T]he plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC....

...We further find that this interpretation does not lead to an unreasonable result or a result clearly contrary to legislative intent. Accordingly, a defendant who is requesting a downward departure sentence pursuant to subsection 921.0026(2)(d) must prove the following three elements by a preponderance of the evidence: (1) the defendant has a mental disorder (unrelated to substance abuse or addiction) or a physical disability; (2...

our existing statutory sentencing scheme. .Section 921.0026, Florida Statutes (2013), entitled “Mitigating

...Because the trial court in this case never reached the second step, we need only determine whether the trial court applied the correct rule of law in concluding no valid legal ground for departure existed. State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012). Section 921.0026(2), Florida Statutes (2016), “sets forth a list of mitigating circumstances permitting the imposition of a downward departure from the lowest permissible guideline sentence.” Simmons, 80 So. 3d at 1092. “Nevertheless, the trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” Id. (citing State v. Stephenson, 973 So. 2d 1259, 1263 (Fla. 5th DCA 2008)). We note that comparative fault is not one of the express statutory mitigating factors enumerated in section 921.0026(2)....

...The evidence in the case showed that defendant and his two passengers had been drinking together before the single-car crash. Id. The defendant, who was facing a twenty-year minimum prison sentence, moved for a downward departure sentence based on section 921.0026(2)(f), Florida Statutes. Id. That express statutory mitigating factor allows for a downward departure if “[t]he victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0026(2)(f), Fla....

...calculated scoresheet when deciding upon a sentence . . . .”). 4 “must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence.”); § 921.0026(1), Fla....

...scoresheet points to make the negotiated sentence appear consistent with the LPS. If the State had provided the trial court with an accurate scoresheet, then the court could have identified the plea bargain as the basis for a downward departure. See § 921.0026(2)(a), Fla. Stat....

...Next, the court addressed the defendant’s motion for a downward departure sentence. One of the grounds raised for a downward departure was that the offenses were committed in an unsophisticated manner and were isolated incidents for which the defendant had shown remorse. See § 921.0026(2)(j), Fla. Stat. (2018). Another ground raised for a downward departure was that the defendant cooperated with the state to resolve the current offense or any other offense. § 921.0026(2)(i)....

...rs of community control and two years of probation. All counts on all cases were ordered 2 We agree with the State that the trial court did not decide to depart because the “defendant cooperated with the state to resolve the current offense.” § 921.0026(2)(i) (emphasis added)....

...reason to depart, we hold that the defendant’s telephonic reporting of a molestation of her child, a crime which she did not witness or participate in, and which predated some of her offenses, was insufficient to establish “cooperation” with the State under section 921.0026(2)(i). -2- to run concurrently....

...discretion, which occurs where no reasonable person would agree with the trial court’s decision. (Internal citations omitted). The offenses committed were not “isolated incidents” within the meaning of section 921.0026(2)(j) “A departure sentence may be imposed where the trial court finds that the ‘offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.’” Staffney v. State, 826 So. 2d 509, 511 (Fla. 4th DCA 2002) (quoting § 921.0026(2)(j), Fla....

...substantial evidence that: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse.” Id. at 511-12. All three factors must be established to justify a departure under subsection 921.0026(2)(j). The State does not dispute that the defendant has shown remorse for her crimes....

...2d 293, 294 (Fla. 2d DCA 2005) (multiple sales of cocaine during a fourth-month time frame not isolated). Because the criminal offenses here at issue were not “isolated incidents” under the statute, the trial court was precluded from relying on section 921.0026(2)(j) as the basis for a downward departure sentence. -4-  We reverse the sentence in case number 16-13124CF10A and remand to the circuit court for resentencing. TAYLOR and LEVINE, JJ., con...

...or has no sentencing discretion.” Fla. R. Crim. P. 3.800(c) (emphasis added). Jones’ offense was not subject to any “minimum mandatory sentence.” Jones was subject to the lowest permissible sentence as calculated by his CPC scoresheet. § 921.00265(1), Fla....

...Stat. (2021) (“The lowest permissible sentence . . . is assumed to be the lowest appropriate sentence for the offender being sentenced. A departure sentence is prohibited unless there are mitigating circumstances or factors present as provided in s. 921.0026 which reasonably justify a departure.”). The CPC’s lowest permissible sentence is not a “minimum mandatory sentence.” A trial court has discretion under the CPC to depart below the lowest permissible sentence. See § 921.0026, Fla....

...However, despite his score, the trial court imposed a downward departure sentence of two years community control with drug offender special conditions because "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla....

...mpetent evidence." State v. Burt, 183 So. 3d 1117, 1118 (Fla. 5th DCA 2015) (citing State v. Bell, 854 So. 2d 686, 690 (Fla. 5th DCA 2003)). Three elements must be shown in order to establish the existence of the mitigating circumstance listed in section 921.0026(2)(j)....

...pellant from showing current offenses were isolated incidents); Thompkins, 113 So. 3d at 99 (finding significant criminal history, including a prior conviction for the same crime, indicated crimes were not isolated incidents within the meaning of section 921.0026(2)(j)); State v....

...Robinson’s sentences after 36 months on no stated condition (and without any probationary term), the trial court imposed sentences less severe than the lowest permissible sentence of 50.85 months’ imprisonment, and so “departed downward” without explanation. Section 921.0026(1), Florida Statutes (2011), provides that a sentence less severe than the lowest permissible sentence allowed under the scoresheet “is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” See also §§ 921.0024(2); 921.00265, Fla....

...In subdivision (b) under the section “Reasons For Departure – Mitigating Circumstances,” at the end of the list, an additional checkbox is added for “Other Reason(s)” and a blank line for the sentencing judge to note any non-enumerated reasons for a downward departure. These amendments align the rule with section 921.0026, Florida Statutes (2022), which notes that the mitigating factors to be considered by the sentencing court when considering a downward departure are not limited to those specifically enumerated in the statute. Accordingly,...

...obtain or provide medical assistance for an individual experiencing a drug-related overdose.  Other Reason(s): _____________________________________________________________________________________________________ Pursuant to 921.0026(3) the defendant’s substance abuse or addiction does not justify a downward departure from the lowest permissible sentence, except for the provisions of s. 921.0026(2)(m). Effective Date: For offenses committed under the Criminal Punishment Code effective for offenses committed on or after October 1, 1998, and subsequent revisions....

...In subdivision (b) under the section “Reasons For Departure – Mitigating Circumstances,” at the end of the list, an additional checkbox is added for “Other Reason(s)” and a blank line for the sentencing judge to note any non-enumerated reasons for a downward departure. These amendments align the rule with section 921.0026, Florida Statutes (2022), which notes that the mitigating factors to be considered by the sentencing court when considering a downward departure are not limited to those specifically enumerated in the statute. Accordingly,...

...obtain or provide medical assistance for an individual experiencing a drug-related overdose.  Other Reason(s): _____________________________________________________________________________________________________ Pursuant to 921.0026(3) the defendant’s substance abuse or addiction does not justify a downward departure from the lowest permissible sentence, except for the provisions of s. 921.0026(2)(m). Effective Date: For offenses committed under the Criminal Punishment Code effective for offenses committed on or after October 1, 1998, and subsequent revisions....

...attorney requests in writing that adjudication be withheld,” or “[t]he court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance ■with those set forth in [section] 921.0026.” § 775.08435(l)(b)l., 2., Fla....

...tion. The trial court stated that the age of Mr. Isom's prior convictions justified a departure from the minimum permissible sentence. The State argues, and Mr. Isom concedes, that this is not an appropriate basis for a downward departure. We agree. Section 921.0026(1), Florida Statutes (2008), provides: A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s....

...Tyrrell, 807 So. 2d 122 (Fla. 5th DCA 2002), State v. Thompson, 754 So. 2d 126 (Fla. 5th DCA 2000), and State v. Abrams, 706 So. 2d 903 (Fla. 2d DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. This case pertains to subsection 921.0026(2)(d), Florida Statutes (2009), which authorizes a trial court to give a downward departure sentence if it finds that “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla....

...sentence him to time served to allow for treatment of his various ailments at the VA Hospital. Chubbuck’s counsel explained that Chubbuck “needs [i]nterferon treatment, which works.” Relying on the downward departure ground set forth in subsection 921.0026(2)(d), Chubbuck’s counsel requested that the court find that a downward departure is appropriate based on Chubbuck’s mental condition and physical disabilities....

...On appeal, the State claimed that “because Chubbuck did not present evidence that the [DOC] cannot provide the required specialized treatment, there was no competent, substantial evidence to support the trial court’s decision to impose a downward departure sentence under subsection 921.0026(2)(d).” Chubbuck, 83 So. 3d at 920. The Fourth District, sitting en banc, held that the plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC....

...4th DCA 2008),7 and State v. Green (Green II), 971 So. 2d 146 (Fla. 4th DCA 2007),8 and certified direct conflict with Scherber, 9 Wheeler, 10 Green I, 11 Mann, 12 5. In Hunter, the Fourth District upheld a departure sentence based on subsection 921.0026(2)(d), finding that “the expert testified that the specialized treatment the defendant needed was not available in the prison system, a requirement for downward departure under section 921.0026(2)(d).” 65 So....

...The Fourth District in Belluscio held as follows: We find no error in the trial court’s imposition of a downward departure sentence, because the defendant met his burden of proving the requirements for a downward departure sentence, pursuant to section 921.0026(2)(d), Florida Statutes (2009), and presented unrebutted testimony that the defendant required specialized treatment for mental health disorders unrelated to substance abuse, which was not available at the [DOC]. 82 So. 3d at 911. 7. “If a departure is to be permitted [under subsection 921.0026(2)(d)], the defendant must also establish, by a preponderance of the evidence, that the [DOC] cannot provide the required ‘specialized treatment.’ ” Gatto, 979 So....

...the specialized treatment he requires and such proof was not presented to the trial court. We reverse the downward departure sentence and remand for resentencing.” 971 So. 2d at 148-49. 9. “To receive a sentence pursuant to . . . section [921.0026(2)(d)], a defendant must prove that the [DOC] cannot provide the specialized treatment required....

...“No evidence was presented to the trial court that specialized treatment was required, or that any required treatment could not be provided by the [DOC].” Thompson, 754 So. 2d at 127. 15. “Florida law . . . requires that, if a departure is to be permitted under subsection [921.0026](2)(d), ‘the defendant must also establish, by a preponderance of the evidence, that the [DOC] cannot provide the required “specialized treatment.” ’ ” Ford, 48 So....

...2d at 528. -8- special concurrence in Hunter. 17 Chubbuck, 83 So. 3d at 921. The Fourth District concluded by reversing Chubbuck’s sentence and remanding for a new sentencing hearing: Because the state was not on notice of this court’s present view of subsection 921.0026(2)(b) at the time of the sentencing hearing, we reverse the sentence to provide the state another opportunity to present evidence as to whether the [DOC] can provide the required “specialized treatment.” Althoug...

.... Id. at 923.18 Thereafter, the State sought to invoke this Court’s discretionary jurisdiction and moved to recall and stay the issuance of the district court’s mandate, which we granted. 17. In Hunter, Judge Warner concluded that subsection 921.0026(2)(d) “does not require the defendant to offer proof that the prison system does not provide the specialized treatment that the defendant requires.” 65 So....

...��s available treatment may be a “daunting and very expensive task.” Id. (Warner, J., concurring specially). -9-  ANALYSIS The question before us is whether subsection 921.0026(2)(d) requires the defendant to prove that the required specialized treatment he needs is unavailable in the DOC....

...J.A., 963 So. 2d 189, 194 (Fla. 2007). A trial court may impose a downward departure below the lowest permissible sentence if it finds, by a preponderance of the evidence, circumstances or factors that reasonably justify the downward departure. §§ 921.0026(1), 921.002(1)(f), Fla. Stat. (2009).19 A downward departure sentence is subject to appellate review, but the extent of the departure is not. § 921.0026(1), Fla. Stat. In 18. In his special concurrence in Chubbuck, Judge Gross found that the record contains reasons which supported Chubbuck’s downward departure sentence other than subsection 921.0026(2)(d)....

...the date of sentencing. A written transcription of reasons stated orally at sentencing for departure from the lowest permissible sentence is permissible if it is filed by the court within 7 days after the date of sentencing. § 921.00265(2), Fla....

...discretion of the court and will be sustained on review absent an abuse of discretion. Discretion is abused only where no reasonable person would agree with the trial court’s decision. Id. at 1067-68 (footnotes omitted). Section 921.0026(2) sets out a non-exclusive list of mitigating circumstances under which a downward departure sentence is reasonably justified for non-capital felonies committed on or after October 1, 1998. See § 921.0026(2)(a)-(m), Fla. Stat....

...nce if the defendant requires - 11 - “specialized treatment” for a mental disorder (unrelated to substance abuse or addiction) or for a physical disability, and the defendant is amenable to treatment. § 921.0026(2)(d), Fla....

...There was no reference to any statutory provision in the opinion; the district court simply cited to the Sentencing Guidelines Scoresheet in Florida Rule of Criminal Procedure 3.990. Id. Abrams was decided in February 1998, which was prior to the effective date of subsection 921.0026(2)(d)....

...treatment of a specialized nature for addiction, a mental disorder, or a physical disability and the defendant was amenable to treatment. § 921.0016(4)(d), Fla. Stat.; Ch. 93-406, § 13. Subsection 921.0016(4)(d) was amended to include the exact same language now found in subsection 921.0026(2)(d), and was repealed effective October 1, 1998, but applies to any offenses committed before that date. Ch....

...In sum, none of the versions of subsection 921.0016(4)(d) requires that the specialized treatment be unavailable in the DOC. Since the Abrams decision, each of our district courts of appeal have concluded that the defendant’s required specialized treatment must be unavailable in the DOC in order for subsection 921.0026(2)(d) to apply....

...no such requirement. State v. Owens, 95 So. 3d 1018, 1019 (Fla. 5th DCA 2012) (en banc). In Owens, the Fifth District determined that its previous view was erroneous because it added an extra requirement that went beyond the plain language of subsection 921.0026(2)(d)....

...cherber, Holmes, Wheeler, Green I, and Abrams. Owens, 95 So. 3d at 1019, 1021. - 14 - purpose of the criminal code is to give an understandably fair warning of authorized sentences). In construing subsection 921.0026(2)(d), our analysis begins with the actual language of the statute....

...2d 217, 219 (Fla. 1984); see also Curry v. Lehman, 47 So. 18, 20 (Fla. 1908) (“[I]t is the duty of the court to interpret laws and not to make them, and we are to make no subtraction or addition to the meaning of a statute.”). We find subsection 921.0026(2)(d) to be clear and unambiguous, and therefore, the plain and ordinary meaning must control. We conclude that the plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC....

...We further find that this interpretation does not lead to an unreasonable result or a result clearly - 15 - contrary to legislative intent. Accordingly, a defendant who is requesting a downward departure sentence pursuant to subsection 921.0026(2)(d) must prove the following three elements by a preponderance of the evidence: (1) the defendant has a mental disorder (unrelated to substance abuse or addiction) or a physical disability; (2) which requires specialized treatme...

...f the offender needs “specialized treatment otherwise not available at the youthful offender facility.” § 958.11(3)(c), Fla. Stat. Had the Legislature intended to require unavailability of specialized treatment in the DOC as an element of subsection 921.0026(2)(d), it could have said so....

...sentence. CONCLUSION Based on the foregoing, we hold that the defendant is not required to prove that the DOC cannot provide the required specialized treatment in seeking a downward departure sentence under subsection 921.0026(2)(d)....

...- 17 - NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. QUINCE, J., concurring in part and dissenting in part. I concur in the majority’s conclusion that the plain language of subsection 921.0026(2)(d), does not require a defendant to prove that the required specialized treatment is unavailable in the Department of Corrections....

...I respectfully dissent, however, from the majority’s decision to remand the case back to the trial court for a new sentencing hearing because there is competent, substantial evidence that the defendant has satisfied all that is necessary under subsection 921.0026(2)(d). PARIENTE, J., concurs. Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions Fourth District – Case No....

...In its written reason for departure, the court recited its finding that Mr. Watson’s failure to report was an isolated incident, committed in an unsophisticated manner, for which he had demonstrated remorse. The State correctly argues that no evidence supports the court’s finding, and we must reverse. Although section 921.0026(2)(j), Florida Statutes (2003), includes among its list of reasons justifying downward departure a judicial finding that the “offense was committed in an unsophisticated manner and was an isolated incident for which the defendant h...

...Corrections, over the State's objection, the trial court sentenced Hollinger to ten years' probation for grand theft and five years' of concurrent probation for the remaining charges. The trial court found that Hollinger met the criteria for a downward departure under section 921.0026(2)(j), Florida Statutes (2016), because the "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." Hollinger had the burden to establish by a preponderance of the evidence that there were facts to support all three elements....

such a downward departure. § 921.0026(1), Fla. Stat. (2014). Section 921.0026(2) sets forth a nonexclusive

...ions. Nor does the statute provide a catch-all provision such as stating that a low-risk technical violation “includes but [is] not limited to” the listed violations, like in the mitigating circumstances statute regarding downward departure, see § 921.0026(1), Fla....

...of nineteen months' prison. We affirm the convictions without comment. Because Mitchell could not produce evidence of the Department of Correction's (DOC) inability to treat his physical condition, his request for a downward departure pursuant to section 921.0026(2)(d), Florida Statutes (2012), was denied....

...defendant requires specialized treatment for . . . a physical disability," Florida caselaw had required a defendant to establish that he "required specialized treatment [which is] unavailable in the DOC." State v. Chubbuck, 39 Fla. L. Weekly S437, S437 (Fla. June 19, 2014) (citing § 921.0026)....

...We agree. “[A]bsent a valid reason for departure” a trial court should impose—at a minimum—the LPS. See § 921.0024(2), Fla. Stat. “A downward departure from the lowest permissible sentence . . . is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat....

PER CURIAM. Defendant appeals his sentence and the trial court’s denial of his motion for a downward departure. We affirm the trial court’s denial of a downward departure. See State v. Cummings, 748 So.2d 388 (Fla. 5th DCA 2000); and Section 921.0026, Florida Statutes (2001)....

in accordance with the factors set out in section 921.0026, Florida Statutes. Id. § 775.08435(1)(d)1

...Picard, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Affirmed. See Rodriguez v. State, 299 So. 3d 555, 557 (Fla. 5th DCA 2020) (“[E]ven if the trial court had separately erred in finding no legal basis to depart under section 921.0026(2)(j) [(step 1)],” because the trial court “determined that this was not a case where it should depart (step 2), ....

...The State of Florida (“State”), appeals the trial court’s downward departure sentence. The State asserts that the trial court erred in issuing a downward departure sentence without legal justification. The appellee commendably concedes error, and we agree. See § 921.0026, Fla....

...s to resentence. I. Trial courts may not depart from the guidelines’ lowest permissible sentence “unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2012). Section 921.0026(2) lists mitigating factors “under which a departure from the lowest permissible sentence is reasonably justified.” § 921.0026(2), Fla....

...3d 517, 518 (Fla. 1st DCA 2013). Mr. Wallace argues that the trial court should depart because his second failure to register “was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla....

...2d 665, 669 (Fla. 5th DCA 2008); State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th DCA 2007). And case law is clear that a defendant’s “extensive criminal history alone precludes the finding that an offense was ‘an isolated incident’ under section 921.0026(2)(j).” State v....

...The State of Florida appeals the downward departure sentence imposed for Timothy Kelleher's convictions of four counts of sale of illegal drugs, three of which were third-degree felonies and one of which was a second-degree felony. Pursuant to section 921.0026(2)(j), Florida Statutes (2011), a court can impose a sentence below the Criminal Punishment Code guidelines if "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." Id....

...Thus, his scoresheet reflects a score of 84.6 points for which the lowest unmitigated sentence would be 42.45 months' prison. At sentencing, Kelleher requested a downward departure sentence for an unsophisticated, isolated offense for which the defendant has shown remorse under section 921.0026(2)(j); the State requested a bottom-of-the-guidelines sentence....

...1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, -2- and (3) the defendant had shown remorse." State v. Butler, 787 So. 2d 47, 48 (Fla. 2d DCA 2001) (citing § 921.0026(2)(j), Fla....

...establish that his offense was an isolated incident. "[T]he issue for this [c]ourt is whether [Kelleher's] -3- criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j) ....

...5th DCA 1999) (holding an incident was isolated where there was only one prior conviction), with State v. Gaines, 971 So. 2d 219, 220-21 (Fla. 4th DCA 2008) (holding that where defendant had eighteen prior convictions including several forcible felonies, a downward departure under section 921.0026(2)(j) cannot be sustained), and State v....

...5th DCA 2008) (same for seventeen prior convictions). In those cases on the higher end of the spectrum, defendants have been held not to have committed offenses that are isolated incidents. Kelleher's criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j). -4-  Because the circuit court erred in imposing a downward departure sentence, we reverse the sentence and remand for resentencing. Sentence reversed....

departure consideration. See § 921.0026, Fla. Stat. (2021) (section 921.0026, providing for downward departure

...rt’s denial of his motion requesting a downward departure sentence, which request had been based on two grounds: (1) his purported need for specialized treatment for a mental disorder that was unrelated to substance abuse or addiction, pursuant to section 921.0026(2)(d), Florida Statutes (2020), and (2) his purported cooperation with law enforcement, pursuant to section 921.0026(2)(i), Florida Statutes (2020). The defendant argues the circuit court’s comments in denying the downward departure motion indicated the circuit court’s lack of impartiality in considering the motion....

...… I have read the [psychologist’s] report … [which] does address the defendant suffers from [“a mental disorder that is unrelated to substance abuse or addiction or for a physical disability.”] [H]owever, … the second part of [section 921.0026(2)(d)] is that [the defendant] has to be [“]amenable to treatment.[”] [T]he only time [the defendant has claimed] that he’s amenable to treatment is in his allocution just now[.] [H]owever, he has not taken any steps in order to receive treatment prior to this. I would also note … the [d]efense … highlighted … [section 921.0026(2)(i)] that referenced … assisting law enforcement. I have [a] [d]etective … here today who would testify … that the person who[m] [the defendant] knew who was producing child pornography was doing so at the direction and the request of the defendant....

...multiple counts possession of child pornography. Id. at 1057. Also like the defendant here, Barnhill requested a downward departure sentence based on an alleged need for specialized treatment for a mental disorder that was unrelated to substance abuse or addiction, pursuant to section 921.0026(2)(d), Florida Statutes (2010), and his alleged cooperation with law enforcement, pursuant to section 921.0026(2)(i), Florida Statutes (2010)....

...However, the trial court imposed a six-month sentence, suspended upon successful completion of two years’ probation. By statute, the trial court must at least impose the lowest permissible sentence required under the CPC unless a valid basis for imposing a departure sentence is established. § 921.00265(1), Fla....

...r s. 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in' the program as part of the sentence. § 921.0026(m), Fla....

...(step 1).” Id. “Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068 . Section 921.0026(1), Florida Statutes (2009), prohibits a downward departure from the lowest permissible sentence “unless there are circumstances or factors that reasonably justify *801 the downward departure.” The statute provides a nonexclusive...

...tuate.” Although the trial court points out that the burglary was a “crime of opportunity” and one of the “least aggravated” burglaries the court had seen, we do not find these factors satisfy the enumerated reasons for departure listed in section 921.0026(2)....

...On remand, Whiteside shall be afforded an opportunity to withdraw his plea. Reversed and remanded. CASANUEVA, C.J., and LaROSE, J., Concur. . The trial court implies that the crime was unsophisticated, but this quality alone does not satisfy the statutory factor listed in section 921.0026(2)(j), which also requires the trial court to find the crime was an isolated incident for which the defendant has shown remorse.

...On remand, the court must resentence Saffold on these counts. iii. The Downward Departure Motion Next, Saffold argues the court erred when it denied his motion for downward departure that was based on amenability to treatment for his bipolar disorder. See § 921.0026(2)(d), Fla....

...We affirmed Appellant’s sentence in conformance with State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005), which required Appellant to present evidence that the Department of Corrections could not accommodate his necessary, specialized treatment in order to receive a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013)....

...We affirmed Appellant’s sentence in conformance with State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005), which required Appellant to present evidence that the Department of Corrections could not accommodate his necessary, specialized treatment in order to receive a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013)....

briefly argued one statutory ground under section 921.0026(2), Florida Statutes (2015), for a downward

briefly argued one statutory ground under section 921.0026(2), Florida Statutes (2015), for a downward

...contest to forty counts of possession of child pornography. We find merit in the first of the two issues raised in this appeal.  Mr. Manyak moved for a downward departure arguing that he requires specialized treatment for a mental disorder. See § 921.0026(2)(d), Fla....

...[[Image here]] (5) A defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (4) and does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines. See also § 921.0026(3), Fla.Stat....

...y where she worked, possibly due in part to her gambling and accumulated debts. Kutz scored fifty-six points and a minimum of twenty-one months in prison on her presentencing scoresheet. At sentencing, she argued for sentence mitigation based on section 921.0026(2)(e), (j), and (m), Florida Statutes (2012)....

...are [sixty] points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. § 921.0026(2)(m) (emphasis added). Ignoring the portion of section 921.0026(2)(m) that requires the defendant be a candidate for a drug court program, the trial court accepted Kutz's argument and sentenced her to a twenty-one-month prison sentence, suspended and to be served on twenty-four months of commu...

...ictions, because there were no prior DUI convictions. After exploring the basis for the objection in substantial detail, the trial court related that while he understood the position of the defense, in order to consider a departure sentence based on section 921.0026(2)(j), Florida Statutes (2002)— that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse — he needed to be able to determine whether the crime pled to by Mr....

...The trial court acted with prudence in assuring that the sentence would not be imposed in a vacuum. We find no error. AFFIRMED. PLEUS and TORPY, JJ., concur. . See §§ 316.193(1) and 316.193(3)(c)3, Fla. Stat. (2002). . The Florida Supreme Court has held that section 921.0026(2)(j) is available to support a *631 downward departure from a sentence for a felony DUI conviction....

...now sentence the Defendant to 73.65 months imprisonment which is the lowest permissible prison sentence, absent a downward departure.” We conclude that the trial court’s reasoning does not amount to a valid legal basis for the downward departure sentence imposed. See § 921.0026 Fla....

...Further, the information’s body did not indicate the stolen property’s dollar value. On the 2014 cases, the defendant’s lowest permissible sentence was 67.50 months. The defendant moved for a downward departure from the lowest permissible sentence, pursuant to section 921.0026(2)(d), Florida Statutes (2014) (“The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.”)...

...his lowest permissible sentence was 79.80 months. The defendant’s counsel did not object to any portion of the defendant’s scoresheet as being inaccurate. Instead, the defendant’s counsel again moved for a downward departure from the lowest permissible sentence, pursuant to section 921.0026(2)(d), Florida Statutes (2018) (“The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.”). In response, the state requested the circuit court to impose the lowest permissible sentence of 79.80 months. The circuit court announced its recognition that “specialized treatment for a mental disorder,” etc. under section 921.0026(2)(d) was a proper ground for downward departure....

...“all terms of sentence.” See, e.g., § 812.15(7), Fla. Stat. (2019) (“The court shall, in addition to any other sentence authorized by law, sentence a person convicted of violating this section to make restitution as authorized by law.”); § 921.0026(2)(e), - 24 - Fla....

...ne count of possession of a controlled substance. However, his argument on appeal  Geske pleaded no contest to the charges and was adjudicated guilty. Prior to sentencing, he filed a motion for a downward departure. In the motion, he relied on section 921.0026(2)(d), Florida Statutes (2021), to argue that he required specialized treatment for a mental disorder that was unrelated to substance abuse or addiction.2 He also relied on section 921.0026(2)(j) to argue that the offense was committed in an unsophisticated manner and that it was an isolated incident for which he had shown remorse....

...Geske also argues that the trial court committed a due process violation by considering Geske's truthfulness as reflected by the trial court's comment that Geske was "not completely forthright" when he was evaluated by his expert witness. We find no merit to these arguments. Section 921.0026(2)(j) specifically permits a trial court to grant a downward departure where the crime was an isolated incident and unsophisticated and where the defendant has shown remorse....

...3d DCA 2012) (noting that courts can consider whether a defendant has shown remorse or accepted responsibility where the defendant seeks a reduction, mitigation, or downward departure of his sentence); Johnson v. State, 948 So. 2d 1014, 1017 n.2 (Fla. 3d DCA 2007) (noting that section 921.0026(2)(j) permits consideration of lack of remorse). This is not a case where the trial court equated Geske's exercise of his constitutional rights with a lack of remorse....

...Nor is there any evidence that the trial court denied the motion for downward departure because Geske entered a no contest plea instead of a guilty plea. Rather, it is evident that in determining whether Geske was entitled to a downward departure under section 921.0026(2)(j), the trial court properly considered whether Geske had shown remorse or accepted responsibility, a necessary requirement for that statutory ground. Turning to the issue of whether the trial court erroneously considered Geske's truthfulness, we conclude that the record does not support that argument....

...credibility of the witness. The trial court did not fundamentally err in 9 considering whether Geske had shown remorse or accepted responsibility for purposes of determining whether he was entitled to a downward departure pursuant to section 921.0026(2)(j)....

...urt considered the additional images or search terms, and even if it did, there was no fundamental error because the evidence and arguments were presented for the purpose of establishing why Geske was not entitled to a downward departure pursuant to section 921.0026(2)(j). In fashioning a sentence, a trial court may not consider incidents of misconduct that occur after the charged offense or unsubstantiated allegations of misconduct; nor may a trial court rely on speculation that the defendant may commit crimes in the future....

...Second, the State did not continue to focus on the additional images; instead, the State proceeded to ask the witness whether there was an indication that Geske encouraged the trial court to consider the additional uncharged images. However, neither of those cases involved a motion for downward departure pursuant to section 921.0026(2)(j) based on the argument that the crimes were isolated and unsophisticated and that the defendant showed remorse....

...The testimony elicited by the State and the State's arguments were presented to establish that the crimes were not isolated or unsophisticated and that Geske had failed to take responsibility for the crimes. That testimony and argument was directly relevant to whether Geske was entitled to a downward departure pursuant to section 921.0026(2)(j)....

...downward departure where a defendant fails to show remorse. Rather, they reflect that the trial court considered the evidence presented to reach the conclusion that Geske himself had not shown remorse, a necessary factor for a downward departure pursuant to section 921.0026(2)(j). CONCLUSION We hold that Geske failed to establish that fundamental error occurred in the trial court's denial of his motion for downward departure and the imposition of his sentences....

..."The trial court may not impose a sentence below the lowest permissible sentence on a defendant's scoresheet unless there is a valid mitigating circumstance to justify the downward departure." State v. Saunders, 322 So. 3d 763, 765 (Fla. 2d DCA 2021) (citing § 921.0026(1), Fla....

...We affirmed Appellant’s sentence in conformance with State v. Holmes, 909 So. 2d 526 (Fla. 1st DCA 2005), which required Appellant to present evidence that the Department of Corrections could not accommodate his necessary, specialized treatment in order to receive a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013)....

...d virus is so rampant, and continues to be so rampant in the county jail and in the prison, that I find that those circumstances do justify my departing downward from the sentencing guidelines. ANALYSIS AND DISCUSSION Section 921.0026, Florida Statutes (2013), entitled “Mitigating Circumstances,” is part of Florida's Criminal Punishment Code....

...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. § 921.0026(1), Fla....

...downward departure is legally valid, is consistent with legislative sentencing policies, and is supported by competent substantial evidence. See Hodges, 151 So. 3d at 534 (holding: “While a trial court may depart for a reason other than those set forth in section 921.0026(2), it may only do so if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited”); State v....

...arising out of a “road rage” incident that started when she and the victim exchanged words in a Whataburger drive-thru line. The trial court adjudicated [Wiley] guilty and imposed a downward departure sentence pursuant to section 921.0026(2)(d), Florida Statutes (2013), finding that [Wiley] required and was amenable to specialized treatment for her bipolar disorder. Id....

...court could depart), the prosecutor argued that “[t]he evidence is that [Wiley’s] specialized treatment is nothing more than taking her prescription, and I don’t believe . . . that is the type of specialized treatment that [section 921.0026(2)(d)] is designed to address.” And, -4-  as to step 2 (whether the trial court should depart), the prosecutor argued that the court should not do so because in...

...URIAM. Christopher Kinsey appeals the sentence imposed following his entry of an open no contest plea to one count of failing *425 to register as a sexual predator. During the sentencing hearing, Mr. Kinsey sought a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013), asserting that he suffers from a mental disorder....

...1st DCA 2005). Mr. Kinsey asks this Court to recede from its decision in Holmes in view of the conflicting conclusions reached more recently by other district courts as to what a defendant must establish in order to qualify for a downward departure under section 921.0026(2)(d)....

...re to have been competent, substantial evidence that (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse. See State v. Santomaso, 764 So.2d 735, 737 (Fla. 2d DCA 2000); § 921.0026(2)(j), Fla....

order to qualify for a valid departure under section 921.0026(j), Florida Statutes, the defendant must establish

general rule do not apply here. See § 921.0026(2)(j), Fla. Stat. (2017) (which allows a sentencing

...2 defense counsel argued that, based on section 775.08435, Florida Statutes, the trial court may withhold adjudication if there are mitigating circumstances such as those set forth in the downward departure statute (section 921.0026, Florida Statutes)....

...At that hearing, the State sought a sentence of twenty years in prison as a habitual felony offender, followed by ten years of probation, and requested restitution for the owner to cover lost rent, property taxes, homeowners’ association fees, and attorney’s fees. Love requested a downward departure under section 921.0026(e), Florida Statutes (2020), and although he argued the need for restitution outweighed the need for prison, he specifically objected to paying restitution for the owner’s attorney’s fees. During the owner’s testimony on the matter of fees, she claimed that she had paid her attorney $300.00 per hour....

...The State argued below that the statutory authority which permits the imposition of a departure sentence in instances where the victim is an “initiator, willing participant, aggressor or provoker of the incident” did not apply in this case since the victim was only 16 years old when the sexual activity started. See § 921.0026(2)(f), Fla....

the level of insanity. Second, pursuant to section 921.0026(2)(d), the trial court found that Clark required

...A toxicology report disclosed Appellant’s blood alcohol content to be 0.281. Mr. Dixon’s strongest argument on appeal is that the trial court improperly failed to consider his physical condition and apparent need for specialized treatment as a mitigating factor that justified a downward departure in his sentence. See § 921.0026(2)(d), Fla....

...t Code Scoresheet. We have jurisdiction. See art. V, § 2(a), Fla. Const. The Supreme Court Criminal Court Steering Committee (Steering Committee) proposes amendments to rule 3.992(b) in light of chapter 2009-64, section 2, Laws of Florida, amending section 921.0026, Florida Statutes (2009)....

...rcover officer. At the sentencing hearing, defense counsel argued that Grant was entitled to a downward departure sentence because the undercover officer was “an initiator, willing participant, aggressor, or provoker of the incident” pursuant to section 921.0026(2)©, Florida Statutes (2002)....

...legality of considering remorse or acceptance of responsibility to reduce (or not reduce) a sentence.” Id. 1 The court took issue with this position, explaining, 1. Indeed, consideration of remorse to reduce a sentence is specifically authorized in section 921.0026(2)(j), Florida Statutes (2017), which permits a downward departure from the lowest permissible sentence in cases where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant h...

...Chapter 921, Florida Statutes, authorizes a trial court to impose a sentence lower than the minimum sentence if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla....

...His scoresheet indicated a lowest permissible sentence of twenty-one months' prison. But the trial court sentenced him to twenty-one months' prison, suspended, and twenty-four months' probation. At sentencing, the trial court indicated that it was departing downward pursuant to section 921.0026(2)(j), Florida Statutes (2013), which allows for a sentence below the lowest permissible sentence where "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." In departing downward, the court only stated, "I don't believe the operation in and of itself was sophisticated enough to come into the category in my mind, okay, that doesn't obviate some section (j) of Florida Statute 921.0026 ....

...erent occasions, suggesting a certain level of sophistication in the area of drug sales.1 Finally, Hudson maintains on appeal that even if departure was not proper under subsection (j), the record supports a downward departure under section 921.0026(2)(m), which provides as follows: 1 On appeal, Hudson also argues that the State did not preserve its objection to the downward departure sentence....

...weighing the totality of the circumstances in the case. Subido, 925 So. 2d at 1057. The reviewing court should not disturb this determination absent an abuse of discretion. Id. State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012). Pursuant to section 921.0026(1), Florida Statutes (2019), “[a] downward departure from the lowest permissible sentence . . . is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” Section 921.0026(2) provides a non-exhaustive list of mitigating circumstances or factors that may be considered, one of which is when “[1] [t]he offense was committed in an unsophisticated manner and [2] was an isolated incident [3] for which the defendant has shown remorse.” § 921.0026(2)(j), Fla....

...That I cannot downward depart and I will not downward depart. If there’s going to be any downward departure it’s going to be after the higher court hears about it. During the pendency of this appeal, the Florida Supreme Court disapproved of our decision in Warner and held that the miti-gator in section 921.0026(2)(j), Florida Statutes, is available to support a downward departure from a sentence for a felo *526 ny DUI conviction. See State v. VanBebber, 848 So.2d 1046 (Fla.2003). Agreeing with the second district’s reasoning in State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001), the court stated: 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)© 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)© applies to felony DUI convictions. 848 So.2d at 1049 (footnotes omitted). The state recognizes that the Florida Supreme Court has determined that the statutory mitigator set forth in section 921.0026(2)© is available as grounds for a downward departure....

...tial drug treatment program. As the Appellee acknowledges, the need for substance abuse treatment is not a permissible basis for departure here because Appellee’s CPC score renders her ineligible for a reduction of sentence for drug treatment. See § 921.0026(2)(m), Fla....

...We grant the petition and remand for resentencing. Napoles was charged with first-degree grand theft for embezzling over a million dollars from her employer’s trust account. She entered an open plea and moved for a downward departure based on several mitigating factors under section 921.0026, Florida Statutes (2007), including the need for specialized treatment for her bipolar disorder. In particular, Napoles relied on section 921.0026(2)(d), which provides that a departure is reasonably justified when the defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant...

...challenged the denial for downward departure based upon State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012), which was decided after her sentencing, but during the pendency of her appeal. We agree. In Chubbuck, we held that the plain language of section 921.0026(2)(d) does not require a defendant to prove that the Department of Corrections “cannot provide the specialized treatment required” in order for a trial court to grant a downward departure under that subsection....

...reviewed and approved our decision. See State v. Chubbuck, 39 Fla. L. Weekly S437 (Fla. June 19, 2014). In doing so, the Court noted that “[if] the Legislature intended to require unavailability of specialized treatment in the DOC as an element of subsection 921.0026(2)(d), it could have said so.” Id....

...according to the amended scoresheet, besides its fear of technically violating double jeopardy. Under Florida law, a trial judge may depart from a defendant’s lowest permissible sentence if justified based on a non- exhaustive list of factors. See § 921.0026(2), Fla....

...ure.” State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). A trial court may depart from the guidelines if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)0'), Fla. Stat. (2011). There must be competent, substantial evidence to support all three elements. See Subido, 925 So.2d at 1057 . Intoxication, however, cannot be used to justify a downward departure. § 921.0026(3), Fla....

...Additionally, the trial court never made any specific oral or written findings that the crime was isolated or that Bosompem showed remorse. Without all three elements, the sentence cannot stand. See State v. Thompson, 844 So.2d 814, 815 (Fla. 5th DCA 2003) (“Any departure based on [section 921.0026(2)(j) ] must be supported by written reasons or orally pronounced findings of fact on each of the three elements.”)....

results from a legitimate, uncoerced plea bargain.” § 921.0026(2)(a), Fla. Stat. (2000). A plea bargain is,

....” We conclude that the trial court’s reasoning does not amount to a valid legal basis for the downward departure sentence imposed. See State v. Pita, 54 So. 3d 557 (Fla. 3d DCA 2011); State v. Salgado, 948 So. 2d 12 (Fla. 3d DCA 2006); § 921.0026 Fla....

PER CURIAM. Appellant, the State of Florida, challenges a downward departure sentence imposed upon Appellee, Laurie Ann Chapman, pursuant to section 921.0026(2)0), Florida Statutes (2011)....

...rt did not find that the escape offense committed by Appellee was an isolated incident, but instead acknowledged that Appellee had “been in the system before.” See State v. Adkison, 56 So.3d 880, 883 (Fla. 1st DCA 2011) (“The plain language of section 921.0026(2)0) indicates departure is warranted if three elements are established: (1) The offense must be committed in an unsophisticated manner; (2) The offense constitutes an isolated incident; and (3) The defendant must show remorse. Record evidence must exist to find each of these elements.”) (emphasis in original); see also State v. Holmes, 994 So.2d 507, 508 (Fla. 3d DCA 2008) (holding that the downward departure sentence imposed pursuant to section 921.0026(2)0) was improper where the trial court did not find that the charged crimes constituted isolated incidents and were committed in an unsophisticated manner)....

...We note also that a finding of an isolated incident could not have been made in this case given Appellee’s prior criminal convictions, which included numerous felonies and misdemeanors. See State v. Leverett, 44 So.3d 634, 637 (Fla. 5th DCA 2010) (holding that the home invasion at issue was not an isolated incident under section 921.0026(2)(j) where the appellee had a prior record that included a felony conviction for possession of cocaine and misdemeanor convictions for possession of marijuana, possession of drug paraphernalia, and trespass); State v. Gaines, 971 So.2d 219, 220-21 (Fla. 4th DCA 2008) (holding that the appellee’s offenses of fleeing or attempting to elude a marked police car, possession of cocaine, and habitual driving with a revoked license were not isolated incidents under section 921.0026(2)(j) where the appellee had eighteen prior convictions); State v....

...Stat. A trial court is permitted to impose a sentence below that contemplated by the Code “only when circumstances or factors reasonably justify the mitigation of the sentence,” § 921.002(1)(f), Fla. Stat., and in a manner consistent with section 921.0026, Florida Statutes....

...Thus, the Code establishes a presumption that a sentence within the guidelines is to be imposed by the trial court— and this presumption is a strong one since a downward departure sentence “is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (emphasis added). A defendant seeking a sentence that departs below the guidelines must establish by a preponderance of the evidence the existence of an asserted mitigating circumstance or factor. See § 921.002(3), Fla. Stat. Section 921.0026 lists fourteen mitigating factors. See § 921.0026(2)(a)–(n), Fla....

...or considerations that may be applicable. See §§ 921.0022– 921.0024, Fla. Stat. 5 exhaustive, as the statute expressly states that the “[m]itigating factors to be considered include, but are not limited to, those listed in [section 921.0026(2)].” See § 921.0026(1)–(2), Fla....

...trial release set for him; and (vi) Hauter had previously served 39 months of a life sentence and “lived with that for a number of years.” The first three reasons articulated by the trial court are statutory mitigating factors identified in section 921.0026; the remaining three are non-statutory mitigating circumstances not expressly identified by the Code. None of the three statutory reasons is supported in the record. Further, the three non- statutory reasons are insufficient to permit a departure sentence. Pertinent to the first three factors considered by the trial court, section 921.0026 provides in part: (2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: (a) The departure results from a legit...

...ing participant, aggressor, or provoker of the incident. .... (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026(2), Fla....

...ted from a legitimate uncoerced plea bargain. Such finding is erroneous as a matter of law. Of primary importance, the statute provides for mitigating a sentence when “[t]he departure results from a legitimate, uncoerced plea bargain.” See § 921.0026(2)(a), Fla....

...ator, willing participant, aggressor, or provoker of the incident. This mitigating circumstance is identified as the lone reason marked on the sentencing guidelines justifying the departure sentence. The trial court wrongly applied the plain text of section 921.0026(2)(f) to this case. This mitigating circumstance applies when “[t]he victim was an initiator, willing participant, aggressor, or provoker of the incident.” See § 921.0026(2)(f), Fla....

...mitigating circumstance justifying a downward departure. 9  3. The final statutory mitigating circumstance cited by the trial court as a basis to depart was Hauter’s remorse. See § 921.0026(2)(j), Fla. Stat. However, remorse alone cannot in itself support a downward departure sentence. Section 921.0026(2)(j) allows a mitigating circumstance when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” Thus, this statute expressly requires three things: the commission of the crime in an unsophisticated manner, the charged incident was isolated, and the demonstration of remorse. See § 921.0026(2)(j), Fla....

...thirty-nine months in prison. None of these non-statutory mitigating circumstances found by the trial court, viewed individually or cumulatively, is sufficient to permit a downward departure sentence. As mentioned, the list of mitigating circumstances set forth in section 921.0026(2) is not exclusive, and a trial court is permitted to consider non-statutory mitigating circumstances if such circumstances are established by a preponderance of the evidence and are not otherwise prohibited....

...3d at 98. First, as to Hauter’s “emotional stability,” this ground is invalid because the trial court could not rely on this “non-statutory factor when that factor is encompassed within a listed statutory factor.” See State v. Sawyer, 350 So. 3d 427, 429 n.1 (Fla. 5th DCA 2022). Section 921.0026 permits mitigation when “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla....

...greatest, though it doesn’t fit specifically into a mental health type of a problem that would be a downward departure itself.” To permit this non-statutory consideration to justify a downward departure sentence would circumvent the requirements of section 921.0026(2)(d) for mitigating a sentence because of a mental disorder....

...Such punishment “increases with the 12 length and nature of [Hauter’s] prior record.” See § 921.002(1)(d), Fla. Stat. III. As a result, since there are no valid grounds under section 921.0026 to permit a departure from the minimum sentence contemplated by the Code, the trial court erred in imposing a sentence less than the minimum required by the Florida sentencing guidelines. Accordingly, this case is REVERSED and R...

...Because we agree with the State that all five grounds given to support the downward departure were improper, we reverse. The fact that Holsey suffers from addiction to controlled substances is, as the trial judge recognized, specifically excluded as a statutory basis for downward departure. § 921.0026(3), Fla....

...cipant is not supported by competent substantial evidence in the record. That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)(f), Florida Statutes....

...additional calculations . . . , the resulting score (represented in months) establishes a defendant's ‘lowest permissible sentence’ which ‘is assumed to be the lowest appropriate sentence for the offender being sentenced.’” Id. (quoting § 921.00265(1), Fla. Stat. 3 (2012)). Section 921.0026(2) contains a list of valid reasons, also called mitigating factors or circumstances, supporting a downward departure from the lowest permissible sentence. See State v. McKnight, 35 So. 3d 995, 997 (Fla. 5th DCA 2010). “The statutory list of mitigating factors is not exclusive and the trial court may impose a downward departure sentence for reasons not delineated in section 921.0026.” Id....

...provided Johnson with the fraudulent check. Defense counsel also asked that Johnson receive a sentence that would enable him to keep his job. The court, relying on defense counsel's argument, offered Johnson two years of probation on the basis of section 921.0026(2)(b), Florida Statutes (2014), which states that "[t]he defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct." The State objected to the imposition of a nonstate prison sanctio...

the criteria for a downward departure under section 921.0026(2)(j), Florida Statutes (2016), because "[t]he

...a felony, but that is the sole basis for the violation. THE COURT: I want to know what would be the legal basis to say that this gentleman is entitled to a downward departure. . . . . [DEFENSE]: Well the legal basis, again, there are specific departures outlined in [section 921.0026, Florida Statutes]— THE COURT: Which one would apply? [DEFENSE]: Well, in the statute, itself, it states these are the exceptions....

...a felony, but that is the sole basis for the violation. THE COURT: I want to know what would be the legal basis to say that this gentleman is entitled to a downward departure. [[Image here]] [DEFENSE]: Well' the legal basis, again, there are specific departures outlined in [section 921.0026, Florida Statutes]— THE COURT: Which one would apply? [DEFENSE]: Well, in the statute, itself, it states these are the exceptions....

Per Curiam. *778 The defendant appeals his sentence of 14.625 years, arguing that the trial court erred by denying his motion for downward departure under section 921.0026(2)(j), Florida Statutes (2014), and specifically challenging the trial court's finding that, by a preponderance of the evidence, the incident was not isolated....

...lahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. The defendant appeals his sentence of 14.625 years, arguing that the trial court erred by denying his motion for downward departure under section 921.0026(2)(j), Florida Statutes (2014), and specifically challenging the trial court’s finding that, by a preponderance of the evidence, the incident was not isolated. “Whether an incident is isolated is an issue of fact to be deter...

...burglary of an occupied dwelling with intent to commit voyeurism. In both cases, the defendant pled no contest to the charges without reserving his right to appeal. In a motion for downward departure, the defendant asserted that, pursuant to section 921.0026(2)(d), Florida Statutes (2013), he required “specialized treatment for a mental disorder that [was] unrelated to substance abuse or addiction or for a physical disability, and [that he was] amenable to treatment.” The state oppos...

...e lewd and lascivious battery charge, and there was no evidence adduced to support the downward departure reasons as they apply to the burglary and grand theft charges. The challenged downward departure sentences therefore violate the prohibition in section 921.0026(1), Florida Statutes (2003), of downward departure sentences that applies “unless there are circumstances or factors that reasonably justify the downward departure.” See State v....

...y of an otherwise appropriate sentence.” § 921.185, Fla. Stat. (2010). A trial court is authorized in imposing a downward departure sentence where “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence,” § 921.0026(2)(e), Fla....

... The State of Florida appeals the trial's court's downward departure sentence. We reverse and remand for resentencing because the trial court improperly found that Shamichael Juliet Johnson's confession satisfied the statutory ground for cooperation, pursuant to section 921.0026(i), Florida Statutes (2011). The trial court placed Johnson on probation for the offense of attempted robbery, and for two offenses for the sale of cocaine within 1000 feet of a place of worship....

...ew absent an abuse of discretion. Id. The State is correct that Johnson's cooperation with the police is an insufficient statutory ground to justify the downward departure sentence. The statutory mitigating factor of cooperation is found in section 921.0026(i), Florida Statutes (2011)....

...Johnson's cooperation thus does not qualify as a statutory mitigating ground. The trial court's departure on this basis is invalid. We therefore reverse and remand for resentencing because the trial court improperly found that Johnson's confession satisfied the statutory ground for cooperation, pursuant to section 921.0026(i), Florida Statutes (2011)....

...White, 894 So.2d 293, 294 (Fla. 2d DCA 2005); State v. Knox, 990 So.2d 665, 668 (Fla. 5th DCA 2008). Nor does the record reflect that (1) Garcia-Costa committed the offenses in an unsophisticated manner, (2) the offenses were isolated, and (3)he has shown remorse. See § 921.0026(2)©; State v....

...Garcia-Costa’s prior seven armed robberies, eight unarmed robberies, two attempted robberies, burglary, and grand theft hardly demonstrate an isolated criminal *564 offense. See Ayers, 901 So.2d at 945 ; State v. Waterman, 12 So.3d 1265, 1268 (Fla. 4th DCA 2009). Thus, the trial court could not rely on section 921.0026(2)(j)....

PER CURIAM. We affirm the downward departure sentence imposed pursuant to section 921.0026(2)(j), Florida Statutes (2002)....

DAVIS, Judge. The State challenges Michael Barnes’ downward departure sentence for vehicular homicide. The trial court based the departure on section 921.0026(2)©, Florida Statutes (2001), which provides that a downward departure can be reasonably justified if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse...

...The court then accepted the defendant’s guilty pleas as knowingly, intelligently, and voluntarily entered. 2. The Sentencing Hearing 4  At the sentencing hearing, the defendant moved for a downward departure, primarily pursuant to section 921.0026(2)(d), Florida Statutes (2015) (“The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.”)....

...lowest possible sentence only if there are circumstances or factors to support the departure; a trial court may not impose a downward departure in the absence of such circumstances or factors.” State v. Sawyer, 350 So. 3d 427, 428 (Fla. 5th DCA 2022) (citing §§ 921.0024(2), 921.0026(1), Fla....

...As to the first prong, to establish his qualification for a downward departure, Avery bore the burden to show that he “requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction” and that he “is amenable to treatment.” § 921.0026(2)(d), Fla. Stat. (2022). On this record, the evidence was insufficient to support a downward departure sentence under section 921.0026(2)(d)....

...First, to the extent that Avery presented evidence of alcohol abuse and pornography addiction, that evidence was irrelevant; the statute requires a showing of a mental disorder “that is unrelated to substance abuse or addiction.” Id.; see also id. § 921.0026(2)(m). Second, to the extent that Avery stated that he believes he suffers from PTSD and depression, we have held that a defendant’s self- report of a mental disorder does not constitute competent, substantial evidence....

...any specialized treatment has a reasonable possibility of successfully treating a mental disorder. See id. (defining amenability to treatment). In sum, the trial court did not have before it competent, substantial evidence to justify a downward departure under section 921.0026(2)(d). III. For the foregoing reasons, we vacate Avery’s sentence and remand this case to the trial court for further proceedings according to the remand instructions for open-plea resentencings 6 set forth in McElroy....

..., which calculated to a lowest permissible prison sentence of 73.05 months. Over the State's objection, the trial court imposed concurrent downward departure sentences of 184 days in the Orange County Jail with 184 days of jail credit on all counts. Section 921.0026(1), Florida Statutes (2018), specifically prohibits a trial court from imposing a sentence below the lowest permissible sentence on a defendant's scoresheet "unless there are circumstances or factors that reasonably justify the downward departure." A defendant seeking a downward departure has the burden of presenting competent substantial evidence at the sentencing hearing of at least one of the non-exclusive mitigating factors under *244 section 921.0026(2), Florida Statutes (2018), in support of the requested downward departure sentence....

...If so, the second step is to assess whether the downward departure sentence was the best sentencing option for the defendant under the totality of the circumstances. Lackey , 248 So.3d at 1224 . The present case involves the first step of this analysis. The defendant sought a downward departure under section 921.0026(2)(d), Florida Statutes (2018), which allows for a departure sentence if "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the de...

...tually requires any specialized medical treatment, the nature of his disability, if any, or that he is amenable to treatment as there was no evidence provided of a treatment plan or that the defendant would be amenable to the plan, as required under section 921.0026(2)(d)....

...ust be evidence that there is a reasonable possibility that such treatment will be successful.' " (quoting State v. Hillhouse , 708 So.2d 326 , 327 (Fla. 2d DCA 1998) ) ). Under these circumstances, the downward departure sentence imposed here under section 921.0026(2)(d) was not appropriate. See State v. McElroy , 145 So.3d 866 , 869 (Fla. 2d DCA 2014) (concluding that a downward departure sentence pursuant to section 921.0026(2)(d) was not supported by competent substantial evidence when there was no evidence of an official diagnosis, whether the defendant required specialized treatment, or whether he would even be amenable to such treatment)....

...Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he -8- graduated from high school, his grades were "D's and E's." Cf., e.g., § 921.0026(c), (d), Fla....