NOT FINAL UNTIL TIME EXPIRES 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 scoresheet 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 months' probation. At 
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sentencing, the trial court indicated that it was departing downward pursuant to section 

921.0026(2)(j), Florida Statutes (2013), which allows for a sentence below the lowest 

permissible sentence where "[t]he offense was committed in an unsophisticated 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 going to depart under that 

statute." The State now challenges this sentence, and we reverse. 

 We initially note that the trial court failed to put its reasons for departing 

downward into writing. See § 921.002(1)(f) (requiring that "[d]epartures below the 

lowest permissible sentence established by the code . . . be articulated in writing by the 

trial court judge" and supported by a preponderance of the evidence). The trial court's 

final judgment only addresses counts three and six, the misdemeanor 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 does incorporate by 

reference the probation order by a notation to "see separate order 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 file written reasons, a 

downward departure sentence may nevertheless be affirmed if the record reflects that 

the trial court made oral findings on the record at the sentencing 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 believe the operation in and of 

itself was sophisticated enough to come into the category." 
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 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 sustained on review if the 

court applied the right rule of law and if competent substantial 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 correct rule of law and that 

Hudson failed to present competent, substantial evidence to support the downward 

departure. See Naylor, 976 So. 2d at 1196 ("The defendant bears the burden of 

presenting competent, substantial evidence supporting the reason for the downward 

departure."). 

 With regard to the correct rule of law, in order to depart downward 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 unsophisticated manner, (2) it was an 

isolated incident, and (3) the defendant had shown remorse." State 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 amounted to an isolated incident 

or that Hudson had shown remorse. And the record does not support 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 court did not make a finding, 

and there was no evidence that Butler had shown remorse."). 

 At the sentencing hearing, Hudson presented the testimony of himself and 

his girlfriend. Neither testified as to Hudson's remorsefulness other than to say that 

Hudson sold the drugs so that he could make a nice Christmas for his children. Hudson 

did try to classify these three separate drug sales as an isolated incident, testifying that 
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they were the only three drug sales he made during that time period. But the arresting 

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

transactions between himself and Hudson that the officer had been unable to videotape. 

As to remorse, Hudson testified, "[I]t's not just something that needs to be tolerated, 

selling drugs, and I know it's wrong, but I couldn't get throwed [sic] out and I resorted to 

doing what I had to do." He also testified that he had been upset 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 conclusion 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 some 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 crime. However, the officer 

testified that Hudson operated under an alias and that he was able to obtain and 

provide cocaine to the officer on five different occasions, suggesting a certain level of 

sophistication in the area of drug sales.1 

 Finally, Hudson maintains on appeal that even if departure was not proper 

under subsection (j), the record supports a downward departure under section 

921.0026(2)(m), which provides as follows: 

 1On appeal, Hudson also argues that the State did not preserve its 

objection to the downward departure sentence. But the transcript of the sentencing 

hearing makes clear not only that the State opposed the downward departure but also 

its reasons for doing so. 
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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 court 

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 under this subsection. 

Although Hudson's total points were less than sixty, he presented 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 program. And the trial court 

made no such findings, written or oral. 

 Because the trial court's stated reason for departing downward was legally 

insufficient, we must reverse and remand for resentencing. 

 Reversed and remanded. 

NORTHCUTT and CASANUEVA, JJ., Concur.