Third District Court of Appeal

State of Florida 

Opinion filed February 9, 2022.

Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D20-1220 & 3D20-1302

Lower Tribunal No. F19-13935

________________

The State of Florida,

Appellant/Appellee,

vs.

Duane Lamar Jones,

Appellee/Appellant.

Appeals from the Circuit Court for Miami-Dade County, Marisa Tinkler 

Mendez, Judge.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney 

General, for appellant/appellee.

Carlos J. Martinez, Public Defender, and James A. Odell, Assistant 

Public Defender, for appellee/appellant.

Before EMAS, SCALES and GORDO, JJ. 

EMAS, J. 
2

INTRODUCTION

The State appeals a downward departure sentence imposed by the 

trial court following defendant’s trial and conviction on the charges of 

burglary of an occupied dwelling and violation of a domestic violence 

injunction. The defendant cross-appeals, contending the trial court erred in 

denying his motion for judgment of acquittal as to the burglary charge. 

We affirm without discussion the defendant’s cross-appeal and, for the 

reasons that follow, we reverse the trial court’s downward departure 

sentence. 

FACTS AND BACKGROUND

The defendant was convicted in February 2020 following a trial, and 

was originally scheduled to be sentenced on March 11, 2020. Under the 

Criminal Punishment Code Scoresheet, Florida Rule of Criminal Procedure 

3.992, the lowest permissible sentence for defendant was twenty-one 

months’ state prison (and a statutory maximum of fifteen years’ state prison). 

However, after a delay in the sentencing date, and the onset of COVID19, the defendant sought a downward departure of two years’ community 

control followed by three years’ probation, on the basis that “Mr. Jones 

should not be sentenced to incarceration in order to prevent the spread of 

COVID-19” and that “incarcerating Mr. Jones would endanger the health of 
3

corrections staff inmates, and Mr. Jones.” Defendant cited to statistics of the 

World Health Organization regarding the global pandemic, as well as 

statistics for the State of Florida showing that (at the time of the sentencing) 

over 31,000 Floridians had tested positive for the virus, over 1000 in Florida 

had died of COVID, and there were 11,000 confirmed cases and 300 deaths 

in Miami-Dade County. 

Defendant further contended that because COVID-19 was “rampant in 

the jail” and because jails across the country had become hotspots for the 

spread of COVID-19, jail inmates were at greater risk to contract the virus. 

Defendant also noted that there was in place a federal order directing that 

the corrections officials provide adequate social distancing in Miami-Dade’s 

local jails and provide evidence of the list of measures being taken to protect 

vulnerable inmates who are over sixty years old or who have underlying 

health conditions. 

Defendant was fifty years old at the time of sentencing, and the only 

medical evidence—specific to defendant—presented in support of his 

request for a downward departure sentence was the testimony of 

defendant’s father that his son suffered from high blood pressure. No 

medical testimony, documentation or other evidence was introduced in 

support of this claim, and the defendant himself did not testify. 
4

The trial court inquired if there was any other basis relied upon by 

defendant to support his request for a downward departure sentence.1

Defense counsel responded: 

No, nothing further. The bulk of our argument lies with the fact 

that there is a global pandemic, and putting him in an 

incarcerative setting would only further the spread of that virus. 

Not only put himself in danger, but all the other people in danger 

as well, at a time when there have been significant efforts to try 

to limit the capacity of people in incarcerative settings.

The State countered that the existence of a pandemic (and the 

potential for increased transmissibility within the confines of a jail or prison 

setting) was by itself legally inadequate to support a downward departure. 

The State suggested, as an alternative, deferring defendant’s surrender to a 

date when the spread of COVID-19 did not present a heightened risk of 

transmission. The State also contended that the father’s testimony about his 

son’s high blood pressure was not competent substantial evidence to 

support a downward departure sentence. 

Although the trial court did note the testimony of defendant’s father, 

the trial court did not rely upon it as a basis for its downward departure

1 The trial court expressly rejected the other two bases asserted by 

defendant in support of his motion for downward departure: that defendant 

lacked the capacity to understand the burglary statute, and the legislative 

intent of the burglary statute. These are not at issue here. 
5

sentence, noting that the defendant’s age (less than sixty years old) did not 

place him in a high risk category according the Centers for Disease Control 

and Prevention and, more importantly, concluding: “What Defense did not 

present to the Court, other than a verbal statement, I did not receive any 

medical records or any evidence, again, other than the testimony of Mr. 

Jones’ father, that Mr. Jones is in a high risk category of individuals that 

might be more susceptible to contracting the virus.”

Nevertheless, the trial court imposed a downward departure sentence 

of two years’ community control followed by eight years’ probation, 

articulating the following basis: 

So I wonder whether or not, because Mr. Jones has been under

supervision of the Court over the past year, whether or not Mr.

Jones—what would be an appropriate punishment for Mr.

Jones... given the extent of illness that has permeated the jails

and prison, what benefit it would serve to essentially punish Mr.

Jones in that fashion....

So for the following reasons, the Court is going to find that, given

all of the circumstances presented, the fact that the Covid 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. It 

establishes guidelines for imposing downward departure sentences, and 
6

provides a non-exhaustive list of circumstances under which a downward 

departure may lawfully be imposed. This section provides in pertinent part:

A downward departure from the lowest permissible sentence, as 

calculated according to the total sentence points pursuant to s. 

921.0024, is prohibited unless there are circumstances or factors 

that reasonably justify the downward departure. Mitigating 

factors to be considered include, but are not limited to, those 

listed in subsection (2). The imposition of a sentence below the 

lowest permissible sentence is subject to appellate review under 

chapter 924, but the extent of downward departure is not subject 

to appellate review.

§ 921.0026(1), Fla. Stat. (2013).

Because the statutory list of mitigating circumstances is not exclusive, 

Florida courts have held that a basis for downward departure will be upheld 

if there is competent substantial evidence to support the stated basis, so long 

as the purported basis for departure is consistent with legislative sentencing 

policies and is not otherwise prohibited. State v. Hodges, 151 So. 3d 531 

(Fla. 3d DCA 2014); State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013).

Our Supreme Court has described the proper analysis to be engaged 

in by a trial court considering a downward departure, and an appellate court’s

corresponding scope and standard of review of the trial court’s decision: 

A trial court's decision whether to depart from the guidelines is a 

two-part process. First, the court must 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 (step 

1). . . . This aspect of the court's decision to depart is a mixed 

question of law and fact and will be sustained on review if the 
7

court applied the right rule of law and if competent substantial 

evidence supports its ruling.

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. In making this determination (step 2), the 

court must weigh the totality of the circumstances in the case, 

including aggravating and mitigating factors. This second aspect 

of the decision to depart is a judgment call within the sound 

discretion of the court and will be sustained on review absent an 

abuse of discretion.

Banks v. State, 732 So. 2d 1065 (Fla. 1999). 

The question presented is whether the articulated basis for the 

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. Cosby, 313 So. 3d 903, 905 (Fla. 2d DCA 

2021) (noting that the reason for a departure sentence must be supported 

by competent, substantial evidence, and must be consistent with legislative 

sentencing policies and not otherwise prohibited); Bowman, 123 So. 3d at 

109 (same). 

In State v. Saunders, 322 So. 3d 763, 767 (Fla. 2d DCA 2021), our 

sister court considered whether the trial court properly imposed a downward 
8

departure sentence where the defendant asserted, as a basis, the 

overcrowding of prisons in the midst of the COVID-19 pandemic. The trial 

court, over State objection, imposed a departure sentence on that basis, 

noting that despite the lack of evidence regarding the health and vulnerability 

of the defendant: “I still think that we have to make every possible attempt to 

get people out of the system, and my understanding is the jail is now facing 

another overcrowding problem.” Id.

The State appealed the sentence, and the Second District reversed, 

holding the downward departure was improper for two reasons. First, the 

trial court’s generalized concerns about jail or prison overcrowding could not 

serve as a valid basis because it is inconsistent with legislative sentencing 

policy “and no case law supports the court’s finding.” Id. at 766-67. See 

also State v. Caride, 473 So. 2d 1362, 1363 (Fla. 3d DCA 1985) (“[T]hat the 

prison system is already overcrowded, is not a valid justification for a 

departure from the guidelines recommended range. This observation, even 

if accurate, concerns a matter properly addressed by the legislative and 

executive branches”).

Second, the court held that Saunders failed to present competent 

substantial evidence in support of his request for a departure sentence,

adding, “although the court inquired about whether Saunders had previously
9

been released due to the pandemic, it is not clear whether the court based

its decision to impose downward departure sentences on the pandemic or

the more general [overcrowding] reasons articulated.” Saunders, 322 So. 

3d at 767.

Under either reasoning, the Saunders court found the evidence 

inadequate: 

[T]here was no evidence—much less competent substantial 

evidence sufficient to establish a preponderance—supporting 

the court's statements. There was no evidence of jail 

overcrowding. While we applaud the trial court's appreciation for 

the seriousness of the pandemic, there was no evidence 

regarding the pandemic, the courts' response to the pandemic, 

or Saunders' health or vulnerability in relation to Covid-19. 

Id.

We agree with our sister court’s analysis in Saunders. Applying it to 

the instant case, the trial court’s first articulated basis for departure—that 

“Mr. Jones has been under supervision of the Court over the past year” is 

not a valid basis for departure and is inconsistent with legislative sentencing 

policy.2

 The second articulated basis for departure—“that the Covid virus is 

2 Following his arrest, defendant was released on pretrial house arrest while 

awaiting his trial. Following his conviction, the trial court permitted him to 

remain on house arrest pending his sentencing. It is this combined period of 

pretrial and presentencing house arrest status the trial court referred to when 

noting that “Mr. Jones has been under supervision of the Court over the past 

year.” It appears undisputed that defendant did not violate his conditions of 

house arrest. However, to permit a trial court to rely upon this as a basis for
10

so rampant, and continues to be so rampant in the county jail and in the 

prison” likewise cannot serve as a valid basis for departure, at least in the 

absence of competent substantial evidence that this defendant has an 

underlying medical or health condition which places him at increased risk of 

contracting COVID-19 if incarcerated in a county jail or state prison. There 

was no such showing in the instant case; indeed, the trial court rejected—as 

insufficiently established—the one medical condition (high blood pressure) 

offered by defendant as a basis for his ostensible increased risk or 

vulnerability to COVID-19. 

CONCLUSION

We hold that the trial court’s basis for a downward departure sentence 

was inconsistent with legislative sentencing policy and was not supported by 

competent substantial evidence related to the defendant’s individual health

a downward departure sentence would, in effect, serve as an end-run around 

existing statutory law and case law holding that a defendant is not entitled to 

receive credit, against his incarcerative sentence, for time spent on house 

arrest. See § 921.161(1), Fla. Stat. (2020) (providing in relevant part: “A 

sentence of imprisonment shall not begin to run before the date it is imposed, 

but the court imposing a sentence shall allow a defendant credit for all of the 

time she or he spent in the county jail before sentence.”); Fernandez v. State, 

627 So. 2d 1 (Fla. 3d DCA 1993) (holding defendant was not entitled, under 

section 921.161(1), to credit against the incarcerative portion of his sentence 

for the time he served on house arrest). See also Licata v. State, 788 So. 

2d 1063 (Fla. 4th DCA 2001) (same); Myers v. State, 761 So. 2d 485 (Fla. 

5th DCA 2000) (same). 
11

or medical condition and any corresponding increased risk or vulnerability to 

COVID-19. We therefore reverse the sentence and remand for a de novo 

resentencing hearing. 

Reversed and remanded.