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Date: 02-19-2022
Case Style:
State of Florida vs Waylon Andrew Kahl
Case Number: 21-0490
Judge: Randell H. Rowe, III
Court:
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
On appeal from The Circuit Court for Escambia County
Plaintiff's Attorney: Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General
Defendant's Attorney: No appearance for Appellee
Description:
Tallahassee, FL - Attorney General represented Appellant with a downward departure sentence that the trial court imposed.
The State charged Kahl with felony petit theft after he stole a
pair of sunglasses from an eyeglass retailer. When he failed to
appear for a hearing, the State amended the information to include
a charge of failure to appear. After his arrest, Kahl remained in
county jail for ten months. He moved for pretrial release. At a
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hearing on that motion, defense counsel asked the State whether
it would consider a time-served sentence. The State declined,
citing Kahl’s extensive criminal history and his lowest permissible
sentence of fifty-five months in state prison.
Defense counsel then presented evidence to support Kahl’s
motion for pretrial release. After counsel concluded his
presentation of evidence, the trial court asked whether the State
would consider “any lesser sentence.” The State stated that it
would not, explaining that Kahl had extensive prior convictions,
including twenty-six forgeries, thirty-three uttering forged
instruments, fraud counts, seven felony petit theft counts, several
burglaries, and twenty-eight misdemeanor petit thefts.
The trial court acknowledged Kahl’s “big record” and asked
the State to confirm the lowest permissible sentence. The State
responded that Kahl scored a lowest permissible sentence of fiftyfive months, or sixty-nine months including the failure to appear
charge.
The trial court then proposed, “what if he pled straight up and
I somewhat downward departed? I would base it on this COVID
and everything else.” The trial court explained that it would
probably sentence Kahl to probation with drug treatment, along
with a period of administrative probation. The court conducted a
plea colloquy and Kahl entered a no contest plea. Then, over the
State’s objection, the trial court sentenced Kahl to two years of
probation, followed by three years of administrative probation. The
State objected, restating the process required for a departure and
arguing that Kahl presented no evidence to support a departure
sentence. Even so, the trial court explained:
It is a downward departure. I’m going to base the
downward departure on the unique issues facing our
society today with Covid, with the lack of jury trials,
speedy trials being suspended -- I just think in the
interest of justice, based upon the minimal nature of this
crime -- not minimizing the theft, but compared to what
I’ve got. For all of those reasons, I’m going to downward
depart.
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The State appeals the trial court’s imposition of a downward
departure sentence. We have jurisdiction. See Art. V, § 4(b)(1), Fla.
Const.; §§ 921.0026(1), 924.07(1)(i), Fla. Stat. (2021); Fla. R. App.
P. 9.140(c)(1)(M).
Analysis
We review a trial court’s decision to grant a downward
departure sentence applying a mixed standard of review. State v.
Kunkemoeller, 46 Fla. L. Wkly. D2369 (Fla. 1st DCA Nov. 3, 2021).
We review the trial court’s legal conclusions de novo and its factual
findings to determine whether competent, substantial evidence
supports those findings. Id. (citation omitted).
The State argues that the trial court erred when it
downwardly departed based on COVID-19 and when it found that
the theft was of a de minimis nature. The State contends that a
generalized concern about COVID-19 is not a valid, non-statutory
mitigating circumstance for departure and that the trial court’s
conclusion that Kahl’s theft was de minimis contravenes
legislative sentencing policy. We agree.
A trial court cannot depart from the lowest permissible
sentence provided under the Criminal Punishment Code “unless
there are circumstances or factors that reasonably justify the
downward departure.” § 921.0026(1), Fla. Stat. (2020). Section
921.0026(2) enumerates fourteen non-exclusive mitigating
circumstances a trial court may consider for a downward
departure sentence. Kunkemoeller, 46 Fla. L. Wkly. D2369. Even
so, a 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. (quoting State v. Robinson, 149 So. 3d
1199, 1203 (Fla. 1st DCA 2014)).
But before a court may depart, it must first determine
whether there is a valid legal ground to depart that defendant has
proven by a preponderance of the evidence. Banks v. State, 732 So.
2d 1065, 1067 (Fla. 1999). If the defendant meets this evidentiary
burden, the trial court must then make a discretionary decision
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under the totality of circumstances on whether it should depart.
Id. at 1068.
Kahl did not meet his burden of proving a valid, legal ground
for departure by a preponderance of the evidence. None of the
circumstances enumerated in 921.0026(2) support a departure
sentence. And though the statute’s list of mitigating circumstances
is not exclusive, a trial court may consider other circumstances
only when the reason for departure is consistent with legislative
sentencing policy. See State v. Geohagan, 27 So. 3d 111, 115 (Fla.
1st DCA 2009).
As to the trial court’s first ground for departure, a generalized
concern over the COVID-19 pandemic is not one of the statutory
mitigating factors, nor one that is consistent with legislative
sentencing policies. See, e.g., State v. Saunders, 322 So. 3d 763, 766
(Fla. 2d DCA 2021) (holding that jail overcrowding because of
COVID-19 was not a valid ground for a downward departure).
Kahl also presented no evidence or testimony about the COVID-19
pandemic, the effects of the pandemic on his health, or the effects
of the pandemic on the progress of his case. See § 921.0026(2)(d)
Fla. Stat. (authorizing a downward departure when the defendant
(1) “requires specialized treatment”, (2) “for a . . . physical
disability”, and (3) “is amenable to treatment.”) “Where a
defendant presents no evidence, he fails to meet the burden of
proving a departure factor by a preponderance of the evidence.”
State v. Williams, 963 So. 2d 281, 282 (Fla. 4th DCA 2007) (citation
omitted). For these reasons, the trial court reversibly erred when
it cited the COVID-19 pandemic as a circumstance supporting
departure.
Similarly, the trial court erred when it departed based on its
reasoning that felony petit theft is an offense of a “de minimis”
nature. The nature of the charged offense does not provide a
statutory or non-statutory circumstance supporting departure.
“[A] trial court’s opinions that the lowest permissible sentence is
too harsh, or that the severity of the sentence is not commensurate
with the seriousness of the crime, are prohibited grounds upon
which to depart.” State v. Bowman, 123 So. 3d 107, 109 (Fla. 1st
DCA 2013). Further, a trial court’s decision to downwardly depart
must be “consistent with the legislative sentencing policy.” Id. The
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State advised the trial court on Kahl’s extensive criminal history
and explained that the lowest permissible sentence was fifty-five
months in prison. See State v. Perlman, 118 So. 3d 994, 996 (Fla.
1st DCA 2013) (holding that the trial court erred when it imposed
a downward departure sentence for two felony petit theft charges
when the defendant’s criminal record consisted of “three robberies,
[twenty-one] felonies, and seven forgery related thefts”). And yet
the court imposed a probationary sentence. The trial court’s
decision to depart from the lowest permissible sentence
contradicted the legislatively crafted sentencing scheme that
increases the severity of sentencing when an offender has an
extensive criminal history. See Harris v. State, 674 So. 2d 110, 112
(Fla. 1996) (explaining that “the sentencing guidelines embody the
principle that the severity of the sanction should increase with the
length and nature of the offender’s criminal history”). And so, the
trial court erred when it downwardly departed based on its opinion
of the nature of the offense and because the departure sentence
was inconsistent with legislative sentencing policy.
Outcome: Because Kahl thus did not meet his burden to establish a valid
statutory or non-statutory ground for departure, the trial court
erred when it departed from the lowest permissible sentence
according to Kahl’s criminal scoresheet. We therefore reverse and
remand for resentencing.
REVERSED and REMANDED
Plaintiff's Experts:
Defendant's Experts:
Comments: