STATE OF FLORIDA,

Appellant,

v.

TONI MARIE SAWYER,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-1006

_____________________________/

Opinion filed December 1, 2016.

An appeal from the Circuit Court for Franklin County.

Stewart E. Parsons, Judge.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant 

Attorney General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public 

Defender, Tallahassee, for Appellee.

BILBREY, J.

The State challenges the sentence imposed on Toni Marie Sawyer, the 

Appellee, following her no contest plea to sale of a controlled substance. Appellee 

was sentenced to 48 months, but that sentence was suspended. She was then 
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placed on community control to be followed by probation. Given her Criminal 

Punishment Code (CPC) scoresheet, the lowest permissible sentence was 39

months imprisonment. Thus, the suspended sentence was a downward departure 

sentence. See State v. Robinson, 138 So. 3d 1225 (Fla. 1st DCA 2014).

In its written order, the trial court gave the following reasons for the 

departure: (i) Appellee has a history of substance abuse for which she has not 

received treatment, although she would benefit from such; (ii) she is a single 

mother of three small children to whom she would be more quickly reunited 

following successful treatment than she would be if imprisoned; and (iii) both 

Appellee and society are better served by Appellee’s commitment to a long-term 

residential drug treatment program.

As the Appellee acknowledges, the need for substance abuse treatment is not 

a permissible basis for departure here because Appellee’s CPC score renders her 

ineligible for a reduction of sentence for drug treatment. See § 921.0026(2)(m), 

Fla. Stat. (2015). Likewise, her familial obligation is not a valid ground for a 

downward departure sentence. State v. Geoghagan, 27 So. 3d 111 (Fla. 1st DCA 

2009).

Nor can the departure sentence be affirmed on the ground that Appellee 

requires mental health treatment for battered woman’s syndrome, as suggested on 

appeal. Appellee did testify that she has had a history of “abusive relationships.” 
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Further, Joanna Johnson, who conducted a substance abuse evaluation, testified

below that Appellee “needs to be seen by a mental health provider” noting that 

Appellee “has been a battered woman, she has had experiences with ill-fated 

relationships that have left her victimized; and then she victimizes.” The training, 

education, and experience of the substance abuse evaluator were not stated in the 

record, and the State argued that Ms. Johnson was not qualified to comment on any 

issue beyond Appellee’s substance abuse; the trial court agreed. Without 

discounting the seriousness of Appellee’s experience of domestic abuse, the record 

on appeal does not establish by a preponderance of evidence a diagnosis of the 

clinical condition of battered woman’s syndrome. See § 921.002(3), Fla. Stat. 

(2016) (“The level of proof necessary to establish facts that support a departure 

from the lowest permissible sentence is a preponderance of the evidence.”); see

also Jackson v. State, 64 So. 3d 90, 92-93 (Fla. 2011). A preponderance of 

evidence is defined as evidence “which as a whole shows that the fact sought to be 

proved is more probable than not.” Dufour v. State, 69 So. 3d 235, 252 (Fla. 2011) 

(quoting State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. 1st DCA 1988)). 

Therefore, the sentence is VACATED, and the cause is REMANDED for 

resentencing. On remand, the trial court may again consider imposing a departure 

sentence if there are valid grounds therefor. See Jackson.

M.K. THOMAS, J., CONCURS; WOLF, J., CONCURS WITH OPINION.
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WOLF, J., concurring.

I concur because the law requires me to do so. However, the trial court, 

which heard extensive testimony and was present to evaluate the witnesses, made 

findings explaining that the interests of society and appellee would be best served 

by sentencing appellee to inpatient substance abuse treatment followed by 

community control and probation, rather than incarceration:

1. The testimony the Court received on behalf of the Defendant 

indicated that she has a long history of substance abuse, and that there 

was a high level of substance abuse in the home as she was growing 

up. Until very recently she has never been involved in a substance 

abuse treatment program. She is currently involved in a treatment 

program offered to inmates in the Franklin County Jail, and the 

director of that program indicated that she has actively participated in 

the program, and he believes she is serious about wanting to conquer 

her addictions, and would benefit from further treatment. The 

Defendant is a single parent with three small children, who are 

currently living with her mother. Assuming treatment is successfully 

completed, Defendant would be reunited with her children in a shorter 

period of time allowing her to meet their needs.

2. The Court believes that the interest of society and the Defendant 

are best served by giving her an opportunity to be treated in a highly 

structured long term, inpatient substance abuse treatment program, to 

be followed by community control and probation, with a continuing 

condition that she avoid any form of substance abuse. If the 

Defendant fails to successfully complete treatment, or violates the 

terms of her probation, she faces a significant period of incarceration, 

under the suspended sentence.

These findings are supported by competent, substantial evidence. Section 

921.0026(2)(m), Florida Statutes, which limits a trial court’s ability to impose a 

downward departure sentence even if a defendant who committed a nonviolent 
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crime is amenable to drug treatment, is ill-advised.* A trial judge should have the 

discretion to listen to the evidence, evaluate the witnesses, and come up with a 

reasonable downward departure sentence based upon the circumstances present in 

a particular case. The statute unnecessarily ties a trial court’s hands. 

 

* Section 921.0026(2)(m), Florida Statutes, allows the trial court to impose a 

downward departure sentence if the defendant is amenable to drug treatment. 

However, to be eligible for this basis for departure, a defendant must have 

committed a nonviolent offense and the total criminal punishment code scoresheet 

points must be 60 or fewer.