Opinion
Case No. 5D19-1405
03-20-2020
STATE of Florida, Appellant, v. Keith Vernon GRIFFITH, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellee.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellee.
TRAVER, J. The State of Florida appeals the downward departure sentence imposed on Keith Vernon Griffith after he pled no contest to two drug possession offenses, and a jury found him guilty of domestic battery by strangulation and burglary with a battery. The trial court entered a downward departure sentence for four reasons. The parties agree the first three are legally insufficient, but they disagree on the fourth: the trial court’s conclusion that the victim and her family law attorney used the criminal proceeding to gain leverage in family court. We conclude this departure ground was factually unsupported and legally insufficient. We therefore reverse.
See § 921.0026(2)(m), (3), Fla. Stat. (2019) ; State v. Hawkins , 225 So. 3d 943, 946 (Fla. 5th DCA 2017) ; State v. Chapman , 805 So. 2d 906, 908 (Fla. 2d DCA 2001).
Griffith and the victim were in a romantic relationship, and they had a daughter together. After they broke up, the victim bought a one-way ticket for Griffith to go to New Jersey, urged him to stay there, and told him he was no longer welcome at her house. Approximately one month later, she woke to him standing over her. He choked her and hit her in the face repeatedly. With great specificity, he threatened to kill her, her parents, and their daughter. Before he left, Griffith warned her not to call the police. The victim called her parents, who arrived shortly thereafter. Her mother took pictures of her injuries, including a black eye, bruises, and fingerprint marks on her neck. Based on Griffith’s threats, no one called law enforcement.
One month later, the victim met with a family law attorney, who encouraged her to report the incident. Before the trial, the attorney sent an email stating that if Griffith stipulated the victim would have sole custody of their child, it "would go a long way" in the victim’s ultimate sentencing recommendation. The parties agreed the email was inadmissible hearsay, but Griffith cross-examined the victim about it at trial. The victim testified she disagreed with the email, and she acknowledged having no control over the jury’s verdict or the trial court’s sentence. She swore there had never been a custody proceeding involving herself and Griffith, and she did not call the police to gain full custody of their daughter. During closing, Griffith argued that the victim had fabricated the attack to gain full custody, and her lawyer’s email evidenced her motivation.
The record does not reflect to whom the attorney sent the email.
The jury returned a guilty-as-charged verdict, finding Griffith and the victim had a domestic relationship, and Griffith had burglarized the victim’s dwelling and battered her therein. Griffith scored a minimum permissible sentence of 51.75 months in prison. The trial court sentenced him to a below-guidelines prison sentence, followed by a term of supervised probation. It issued a detailed written order supporting its sentence.
Trial courts must impose, at minimum, the lowest permissible sentence calculated according to the Criminal Punishment Code unless they find the evidence supports a valid basis for downward departure. See § 921.002(1)(f), (3), Fla. Stat. (2019) ; State v. Tyrrell , 807 So. 2d 122, 125 (Fla. 5th DCA 2002), disapproved on other grounds by State v. Chubbuck , 141 So. 3d 1163, 1171 (Fla. 2014). Trial courts must assess whether they can depart by "determining whether ‘there is a valid legal ground and adequate factual support for that ground.’ " Tyrrell , 807 So. 2d at 125 (quoting Banks v. State , 732 So. 2d 1065, 1067 (Fla. 1999) ). We will affirm this decision if any reason the trial court provides is valid and supported by competent, substantial evidence. See id . The Criminal Punishment Code lists fourteen non-exclusive bases for downward departure. § 921.0026(2)(a)–(n), Fla. Stat. (2019). Trial courts may impose a downward departure for nondelineated reasons provided the proffered reason is valid and supported by competent, substantial evidence. See State v. Laroe , 821 So. 2d 1199, 1201 (Fla. 5th DCA 2002) (citing State v. Randall , 746 So. 2d 550, 552 (Fla. 5th DCA 1999) ).
Here, there is no apparent factual support for the trial court’s downward departure sentence. No custody proceeding existed between Griffith and the victim in which she could gain leverage. She disavowed her family law attorney’s offered stipulation, and the email never came into evidence. The trial court received no evidence at sentencing to support the downward departure. The only apparent support for the trial court’s conclusion that the victim and her attorney used the criminal prosecution to gain leverage in a family law proceeding are arguments of defense counsel, which cannot form a valid departure basis. See State v. Bernard , 744 So. 2d 1134, 1135 (Fla. 2d DCA 1999) (citing State v. Zumpf , 728 So. 2d 347 (Fla. 2d DCA 1999) ).
The trial court’s legal basis for departure was also invalid. Griffith impeached the victim with her attorney’s email and her delay in reporting the assault until after she met with her family law lawyer. The jury’s verdict illustrates it believed the victim’s account and rejected Griffith’s impeachment efforts. A trial court’s personal view of the evidence and the victim’s credibility are impermissible grounds for a below-guidelines sentence. See Williams v. State , 279 So. 3d 839, 844 (Fla. 1st DCA 2019) (finding that a trial court’s perception of conflicts in the evidence and victim’s testimony does not support downward departure (citing State v. Wright , 473 So. 2d 268, 271 (Fla. 1st DCA 1985) )); State v. Joiner, 498 So. 2d 1017, 1018 (Fla. 5th DCA 1986) (holding judge’s view of victim’s credibility does not provide valid reason for departure).
For these reasons, we reverse Griffith’s sentence and remand for resentencing. See Jackson v. State , 64 So. 3d 90, 93 (Fla. 2011) ; see also § 741.281, Fla. Stat. (2019) (requiring minimum term of one year of probation and successful completion of batterer’s intervention program if defendant is found guilty of domestic violence offense).
REVERSED AND REMANDED.
EDWARDS and HARRIS, JJ., concur.