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Florida Third District Court Of Appeal – Criminal Headnotes – August 23, 2017

STATE OF FLORIDA V. DEREK LANG SHINE, JR. – NO LEGAL GROUND FOR DOWNWARD DEPARTURE SENTENCE

Direct appeal by state from a downward departure sentence on violation of probation for a drug offense. The trial court explained the sentence by saying the defendant had previously been granted a downward departure under an “uncoerced plea agreement,” and it would be “inappropriate, too harsh[,] and contrary to the principles of graduated sanctions” to impose the minimum sentence without downward departure.

The appeals court rules these reasons were insufficient in light of State v. Pita, 54 So.3d 557 (Fla. 3d DCA 2011), and State v. Salgado, 948 So.2d 12 (Fla. 3d DCA 2006).

Remanded for resentencing. The trial court may again impose a downward departure sentence, but it must be supported by a “recognized[,] legally permissible reason,” per section 921.0026, Fla. Stat. 2014.

MICHAEL SANDOVAL V. STATE OF FLORIDA – INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO CALL ALIBI WITNESSES

Appeal from denial of motion for post-conviction relief alleging ineffective assistance of counsel in failing to investigate the potential testimony of two alibi witnesses, to the effect a third party might have downloaded child pornography to the defendant’s computer. The defendant had agreed with counsel’s decision not to call these witnesses, his stepdaughter and her mother, at trial, and when they did later testify at the Rule 3.850 hearing, the trial court found their testimony not credible.

The appeals court finds no error in the trial court’s finding the defendant did not meet his burden of showing counsel was ineffective.

Affirmed.

Y.R. V. STATE OF FLORIDA – INSUFFICIENT EVIDENCE OF VALUE OF STOLEN ITEM – REMAND FOR SENTENCING TO LESSER DEGREE OF PETIT THEFT

Direct appeal from conviction and sentencing of juvenile for first-degree petit theft. Citing Contes v. State, 190 So.3d 198 (Fla. 3d DCA 2016), the appeals court finds the state failed to prove the value of the stolen item at the time and place of the offense, nor its replacement value within a reasonable time after the offense.

Remanded to vacate the charge and adjudication for first-degree petit theft, enter an adjudication for second-degree petit theft, and conduct a disposition hearing at which the defendant has a right to be present.