NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D13-4843 ) KENNETH HUDSON, ) ) Appellee. ) ) Opinion filed December 17, 2014. Appeal from the Circuit Court for Manatee County; John F. Lakin, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellant. Peter Lombardo, Bradenton, for Appellee.

DAVIS, Chief Judge. Kenneth Hudson entered nolo contendere pleas to three counts of sale of cocaine and one count each of possession of cocaine, violating license restrictions, and operating a motorcycle without a valid driver's license. His s coresheet 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 mo nths' probation. At- 2 - sentencing, the trial court indicated that it was departing dow nward pursuant to section 921.0026(2)(j), Florida Statutes (2013), which allows for a sen tence below the lowest permissible sentence where "[t]he offense was committed in an u nsophisticated 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 . . . . So I'm go ing to depart under that statute." The State now challenges this sentence, and we rever se. We initially note that the trial court failed to put its reas ons for departing downward into writing. See § 921.002(1)(f) (requiring that "[d ]epartures below the lowest permissible sentence established by the code . . . be ar ticulated in writing by the trial court judge" and supported by a preponderance of the evid ence). The trial court's final judgment only addresses counts three and six, the misdeme anor counts for which Hudson received time served, but it fails to address counts one , two, four, and five, the counts for which the court departed downward. The judgment doe s incorporate by reference the probation order by a notation to "see separate or der of probation for counts 1, 2, 4, 5." But the probation order also lacks written reasons for the downward departure sentence. However, "[i]f the trial court does not fi le written reasons, a downward departure sentence may nev ertheless be affirmed if the record reflects that the trial court made oral findings on the record at the sentenc ing hearing which support the sentence." State v. Naylor, 976 So. 2d 1193, 1196 (Fla. 2d DCA 2008). Here, in rendering sentence, the trial court merely stated, "I don't bel ieve the operation in and of itself was sophisticated enough to come into the category."- 3 - The determination of whether this is a valid legal ground for a downward departure "is a mixed question of law and fact and will be sust ained on review if the court applied the right rule of law and if competent substantia l evidence supports its ruling." See State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006). We conclude that in the instant case the trial court did not apply the corr ect rule of law and that Hudson failed to present competen t, substantial evidence to sup port the downward departure. See Naylor, 976 So. 2d at 1196 ("The defendant bear s the burden of presenting competent, substantial evidence supporting the reaso n for the downward departure."). With regard to the correct rule of law, in order to depart do wnward under subsection (j) of the statute, "it [i]s necessary for there to [be] competent, substantial evidence that (1) the offense was committed in an unsophisticat ed manner, (2) it was an isolated incident, and (3) the defendant had shown remorse." S tate v. Butler, 787 So. 2d 47, 48 (Fla. 2d DCA 2001). Here, the trial court addressed the sophistication prong of subsection (j) but made no findings that the offenses amount ed to an isolated incident or that Hudson had shown remorse. And the record does not supp ort either of these required elements. See id. ("In the present case, there was no evidence supporting the factor that the offense was an isolated incident, the trial cou rt did not make a finding,

and there was no evidence that B utler had shown remorse."). At the sentencing hearing, Huds on presented the testimony of himself and his girlfriend. Neither testified as to Hudson's remorsefulnes s other than to say that Hudson sold the drugs so that he could make a nice Christmas fo r his children. Hudson did try to classify these three separate drug sales as an isola ted incident, testifying that- 4 - they were the only three drug sales he made during that time pe riod. But the arresting

officer testified on rebuttal that in addition to these three s ales, there were two other

transactions between himself and Hudson that the officer had be en unable to videotape. As to remorse, Hudson testified, "[I]t's not just something tha t needs to be tolerated, selling drugs, and I know it's wr ong, but I couldn't get throwe d [sic] out and I resorted to doing what I had to do." He also testified that he had been up set with law enforcement for not stopping him after the first sale. As such, Hudson has not met his burden of establishing either that this was an isolated incident or that he was remorseful. Furthermore, the record does not support the trial court's co nclusion that

this crime was committed in an unsophisticated manner. Hudson' s testimony merely recounted his job history and how even though he had been in so me trouble when he was young, he had since stayed out of trouble—until the instant offenses. His girlfriend testified that he provided for his children and that he did not have a drug problem. This testimony does not speak to the sophistication level of the cri me. However, the officer testified that Hudson operated under an alias and that he was a ble to obtain and provide cocaine to the officer on five different occasions, sug gesting a certain level of sophistication in the area of drug sales. 1 Finally, Hudson maintains on appeal that even if departure wa s not proper under subsection (j), the record s upports 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 i ts objection to the downward departure sentence. But the transcri pt of the sentencing hearing makes clear not only that the State opposed the downwar d departure but also its reasons for doing so.- 5 - The defendant's offense is a nonviolent felony, the defendant's Criminal Punishment Code scoresheet total sentence points . . . are [sixty] points or fewer, and the cour t 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. We do not agree that the record supports a downward departure u nder this subsection. Although Hudson's total points w ere less than sixty, he present ed no evidence that he is "amenable to the services of a postadjudicatory treatment-based drug court program" or that he "is otherwise qualified to participate in" such a progr am. And the trial court made no such findings, written or oral. Because the trial court's stated reason for departing downwar d was legally insufficient, we must reverse and remand for resentencing.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.