STATE OF FLORIDA,

Appellant,

v.

RODNEY LARRY ROBINSON,

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. 1D14-2017

_____________________________/

Opinion filed November 6, 2014.

An appeal from the Circuit Court for Hamilton County.

Andrew J. Decker, III, Judge.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney 

General, Tallahassee, for Appellant.

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

Tallahassee, for Appellee.

WETHERELL, J.

The State appeals what amounts to a three year county jail sentence for two 

first-degree felonies committed by an offender with a lengthy criminal record. The 
State contends that the grounds relied upon by the trial court for this downward 

departure sentence are not legally valid. We agree. Accordingly, we reverse and 

remand for resentencing.

Factual and Procedural Background

The appellee, Rodney Larry Robinson, sold $50 worth of crack cocaine to a 

confidential source near a church in Jasper. He was arrested and charged with sale 

of cocaine within 1,000 feet of a church (count 1) and possession of cocaine with the 

intent to sell within 1,000 feet of a church (count 2).

1

 Robinson entered an open plea 

of guilty to both counts. His Criminal Punishment Code (CPC) scoresheet included 

three prior felony drug offenses – trafficking in cocaine, sale of cocaine, possession 

of cocaine with the intent to sell – and a prior battery, and it reflected a lowest 

permissible sentence of 60.75 months in state prison.

Over the State’s objection, the trial court imposed a downward departure 

sentence of 364 days in the county jail followed by 2 years of community control 

and 3 years of probation with no credit for the nearly two years that Robinson had 

served in the county jail since his arrest. The court did not provide written findings 

1

 Robinson was also charged with violating his probation in a 2006 cocaine 

trafficking case based upon these new law offenses. The record does not contain an 

order disposing of the probation violation, but Robinson’s counsel represented at the 

sentencing hearing that the parties “reached a resolution to basically just say his 

probation was over” because there was apparently an issue as to whether Robinson’s 

probation had been terminated.

2

 
to support this downward departure; however, at the sentencing hearing, the court 

explained its rationale for the sentence as follows:

In considering an appropriate sentence, in this case, I think 

the Court has to be mindful of the legislative policy and 

the legislative intent, to -- to deal with this particular 

problem [of drug possession and sale], and the scourge of 

this problem, as it encroaches upon neighborhoods, 

churches, schools in such a way as to provide more serious 

damage and harm to the community than would be the 

normal case. 

At the same time, the Court has to be mindful of the 

provisions of chapter 921.0026 and the factors that have 

been presented here. It has been the Court’s observation 

since taking office that the disposition of cases in our 

circuit, especially in our county here, are really totally 

different from the way cases are handled in, let’s say Dade 

County or Hillsborough or Orange County. 

As a Judge, new to criminal matters, I’ve studied and 

poured over the advance sheets, and tried to keep up with 

every single reported case, so I understand better, not only 

the statutory provisions, but their applicability and the way 

in which they’re construed by trial courts and appellate 

courts. And if this were Dade County, it would not surprise 

me to see a sixty year sentence, for what Mr. Robinson has 

done. 

But we have a different community here, we are -- we live 

more, I guess, closer to each other and see each other on a 

daily basis and relate to each other in a community. . . . 

I think, in trying to weigh and balance, I don’t see that 

there’s any mitigating circumstances that would be 

warranted by any displays of remorse, because that has to 

be in a context of an isolated incident. When you have the 

prior matters that are noted here, and you have these two 

serious charges, and I would note that one of the previous 

3
charges, trafficking in cocaine, that was a felony of the 

first-degree. And if I was arrested for trafficking in 

cocaine and told by my attorney that I would face thirty 

years, I think that would be all the isolated circumstance I 

would need to fly right. But in your case, it wasn’t, it just 

wasn’t.

Since your arrest, well, since the incident for three years, 

you’ve not committed any crimes. The sheriff has 

indicated by the way he’s administered his jail, and the 

way he’s handled you, that he is confident in your behavior 

when you’re released. When you’re on work release, he’s 

indicated that he trusts that you will comply with the law, 

and not do anything to embarrass him. . . . He’s got to be 

awfully confident in you, and feel like you are deserving 

of this opportunity, this chance. 

You did step forward and candidly acknowledge your guilt 

and take responsibility for that by taking an open plea 

without any bargain, or any conditions. And I think that 

shows, together with other things I’ve noted, that you’re at 

a point in your life when you want to turn things around. 

You want to go down a different path, and you want to 

take responsibility for your actions and accept the 

consequences. 

The Court, in trying to weigh all these different factors, 

believes that -- and I’ve kind of backed myself into what 

I’m about to say, so I’ll try to explain what I’m doing. But 

in order to deal with and avoid any appellate issues on 

the Blockburger[2] issues or the McCloud[3] issues, I’m in 

my mind, mathematically, I’m treating the -- I’m 

accepting [defense counsel’s] argument on that point.[4]

2

 Blockburger v. United States, 284 U.S. 299 (1932). 3

 State v. McCloud, 577 So. 2d 939 (Fla. 1991). 4

 Earlier in the sentencing hearing, defense counsel argued that the 28 points for 

the secondary offense of possession with the intent to sell should be removed from 

Robinson’s scoresheet because it would violate double jeopardy to punish him for 

both the possession and the sale of the same cocaine. The trial judge correctly 

4

 
And that would reduce the minimum sentence permissible, 

to 39.75 months, based on my math. Because, if you take 

away that 28 points, for the other felony in the first-degree 

charge, then that would be -- that would bring you down, 

when you take 75% to 39.75. That is approximately 3.3 

years. 

Mr. Robinson has been in jail for two years. If his case had 

been tried promptly, and I don’t ascribe any fault or 

circumstance to it not being resolved sooner. Obviously, 

with discovery, with requests for continuances, with the 

change in prosecutor, with the Court’s own docket and 

own calendar issues that contribute to these matters, we 

are where we are. And we are resolving things as quickly 

as we can, but nevertheless, Mr. Robinson has kind of been 

in limbo. Normally, limbo’s for innocent souls, but we’ll 

put you in limbo for the sake of discussion. For about two 

years, and with the gain time of 15%, that would be about 

2.3 years.

This appeal followed.

Analysis

Under the CPC, the lowest permissible sentence calculated in the offender’s 

scoresheet is “the minimum sentence that may be imposed by the trial court, absent 

a valid reason for departure.” § 921.0024(2), Fla. Stat. (2011); see also § 

921.00265(1), Fla. Stat. (2011) (“A departure sentence is prohibited unless there are 

mitigating circumstances or factors present as provided in s. 921.0026 which would 

rejected that argument based upon McCloud and ruled that “the scoresheet is correct, 

as filed, based on the information to which Mr. Robinson pled.” The judge 

reaffirmed that ruling at the conclusion of the sentencing hearing and explained that 

he had only conceptually deducted the 28 points in his mind in order to “kind of back 

into what [he] think[s] works.”

5

 
reasonably justify a departure.”). The trial court “may impose a departure below the 

lowest permissible sentence based upon circumstances or factors that reasonably 

justify the mitigation of the sentence in accordance with s. 921.0026.” § 921.002(3), 

Fla. Stat. (2011). The mitigating factors and circumstances that may be considered 

by the trial court in determining whether to impose a downward departure sentence 

“include, but are not limited to” those listed in section 921.0026(2). § 921.0026(1), 

Fla. Stat. (2011); see also State v. Henderson, 108 So. 3d 1137, 1140 (Fla. 5th DCA 

2013) (“The trial court can impose a downward departure sentence for reasons not 

delineated in section 921.0026(2), so long as the reason given is supported by 

competent, substantial evidence and is not otherwise prohibited.”); McCorvey v. 

State, 872 So. 2d 395, 396 (Fla. 1st DCA 2004) (explaining that “the statutory 

mitigating circumstances are not exclusive”).

A trial court’s decision to depart from the lowest permissible sentence is a 

two-step process: the trial court must first determine whether it can depart (step one) 

and then it must determine whether it should depart (step two). See Banks v. State, 

732 So. 2d 1065, 1067-68 (Fla. 1999). In step one, the trial court must determine 

whether there is a valid legal ground for departure and adequate factual support for 

that ground. Id. at 1067. In step two, the trial court must determine whether a 

downward departure is the best sentencing option for the defendant. Id. at 1068.

Here, the State contends that the trial court erred in step one because the non6
statutory grounds relied on by the court for Robinson’s downward departure 

sentence are not legally valid. We agree for the reasons that follow.

First, the trial court’s observation that the disposition of criminal cases is 

handled differently in Hamilton County than in other areas of the state is not a legally 

valid reason for a downward departure. The CPC is a general law that applies 

uniformly across the state irrespective of the nature and size of the community in 

which the crime was committed. See § 921.002, Fla. Stat. (2011). Moreover, under 

the rationale expressed by the trial court, downward departure sentences could 

become the norm rather than the exception in Hamilton County and similar 

locales. Cf. State v. Thompkins, 113 So. 3d 95, 100 (Fla. 5th DCA 2013) (reversing 

downward departure sentence based upon trial court’s observation that the crime 

was based upon “anger and stupidity” because those terms are not part of the lexicon 

of the CPC, and explaining that “if trial courts are permitted to impose sentences 

below the minimum guideline range based on their perception that a crime was 

committed out of anger and stupidity, it would be difficult to find many cases that 

would not qualify for a departure sentence, thus making departure the rule rather 

than the exception”).

Second, Robinson’s lack of criminal activity since his arrest for the charged 

offenses is not a legally valid reason for departure. State v. Stephenson, 973 So. 2d 

1259, 1264-65 (Fla. 5th DCA 2008) (“That a defendant refrains from criminal 

7
activity for a short time is an insufficient reason for a downward departure.”); see 

also State v. Geoghagan, 27 So. 3d 111, 114 (Fla. 1st DCA 2009); State v. Nathan,

632 So. 2d 127, 128 (Fla. 1st DCA 1994). Moreover, to the extent the trial court’s 

statements concerning the sheriff’s “confidence” in Robinson were intended to be 

findings that Robinson is rehabilitated and poses no future threat or danger to 

society, there is no competent substantial evidence to support such findings.

Third, Robinson’s admission of guilt and entry of an open plea is not a legally

valid reason for departure. See Geoghagan, 27 So. 3d at 113. A defendant’s plea 

only provides justification for downward departure when there has been a 

“legitimate, uncoerced plea bargain” with the State. Id.; see also § 921.0026(2)(a), 

Fla. Stat. (2011). No such plea bargain existed in this case.

Fourth, the potential double jeopardy “issues” referenced by the trial court are 

unfounded and do not provide a legally valid basis for the downward departure even 

if (as the trial court and the parties appear to assume5

) the two charges against 

Robinson are based upon the possession and sale of the same cocaine. See McCloud, 

5

 The affidavit in support of the arrest warrant, which provided the factual basis for 

the plea, suggests that the two charges against Robinson were not necessarily based 

upon the same cocaine. The affidavit explains that Robinson “possessed a cigar bag 

[sic] which appeared to be full of small bags of crack cocaine and he retrieved $50 

of suspected crack from the box and sold it to the CS [confidential source]. He then 

asked CS if they wanted to buy a full cookie.” Thus, it appears that count 1 (sale of 

cocaine) may have been based upon the $50 of crack cocaine sold to the confidential 

source and count 2 (possession of cocaine with the intent to sell) may have been 

based upon the other small bags of crack cocaine in the cigar box.

8

 
577 So. 2d at 939-40 (holding that double jeopardy does not prohibit dual 

convictions for possession and sale of the same quantum cocaine); McMullen v. 

State, 876 So. 2d 589, 590 (Fla. 5th DCA 2004) (holding that double jeopardy does 

not preclude convictions for both sale and possession of the same cocaine within 

1,000 feet of a church); see also Thomas v. State, 61 So. 3d 1157, 1158 (Fla. 1st 

DCA 2011) (holding that double jeopardy does not preclude convictions for both 

sale and possession of the same cocaine within 1,000 feet of a school). 

Finally, contrary to Robinson’s tipsy coachman argument on appeal, the 

downward departure cannot be justified under State v. Steadman, 827 So. 2d 1022 

(Fla. 3d DCA 2002), because there is no evidence of “sentence manipulation” in this 

case. Indeed, unlike Steadman which involved a sting operation that continued for 

over a month for no legitimate reason except to enhance the defendant’s sentencing 

exposure, id. at 1025, this case involved a single drug sale. Moreover, 

unlike Steadman, the county jail sentence imposed by the trial court in this case was 

well below the 39.75 month prison sentence that Robinson would have been subject

to if he had only been charged with count 1. See id. at 1025-26 (“We emphasize that 

our holding is predicated on the fact that the sentence imposed did not go below what 

Steadman would have received in the absence of the sentence manipulation.”).

Conclusion

In sum, for the reasons stated above, we reverse Robinson’s downward 

9
departure sentence and remand for resentencing. See Jackson v. State, 64 So. 3d 90, 

93 (Fla. 2011).

REVERSED and REMANDED for resentencing.

PADOVANO, J., CONCURS; SWANSON, J., CONCURS WITH OPINION.

10
SWANSON, J., CONCURRING.

I concur in the decision to reverse the trial court’s downward departure 

sentence and to remand for resentencing. The trial court’s oral reasons for departing 

from the lowest permissible sentence were either legally invalid or not based on 

competent and substantial evidence in the record, as Judge Wetherell’s opinion 

explains. I write to emphasize that on remand the law does not preclude the trial 

court from imposing a downward departure sentence if it provides a legally valid 

basis to do so which is supported by the record. As the Florida Supreme Court ruled 

in Jackson v. State, 64 So. 3d 90 (Fla. 2011):

Based on our reading of the legislative scheme, nothing within the 

[Criminal Punishment Code] precludes the imposition of a downward 

departure sentence on resentencing following remand. To be sure, if a 

trial court on remand resentences a defendant to a downward departure 

sentence, the trial court must ensure it comports with the principles and 

criteria prescribed by the Code. However, an appellate court should not 

preclude a trial court from resentencing a defendant to a downward 

departure if such a departure is supported by valid grounds.

Id. at 93.6

 

6

 Just recently, in Bryant v. State, 39 Fla. L. Weekly S591 (Fla. Oct. 9, 2014), the 

Florida Supreme Court described Jackson as being a “narrowly tailored decision” 

limited to instances where the trial court imposes a downward departure sentence 

under the Criminal Punishment Code, which does not contemplate upward departure 

sentences because, generally, the statutory maximum sentence is the highest possible 

sentence for any crime. 39 Fla. L. Weekly at S593. In Bryant, however, the supreme 

court reviewed the propriety of an upward departure sentence sanctioned by section 

775.082(10), Florida Statutes, but which was imposed by the trial court without the 

court’s making any written findings to support the upward departure. In such a case, 

the supreme court ruled its earlier decisions in Pope v. State, 561 So. 2d 554 (Fla. 

11

 
1990), and Shull v. Duggar, 515 So. 2d 748 (Fla. 1987), still applied to preclude the 

trial court, on remand, from again imposing a departure sentence. 

12