DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

ALEX ANTHONY GUERRA,

Appellee.

No. 4D20-1932

[October 27, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Mariya Weekes, Judge; L.T. Case No. 19-10389CF10A.

Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, 

Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant 

Public Defender, West Palm Beach, for appellee.

LEVINE, J.

The defendant pled nolo contendere to two counts of aggravated assault 

with a deadly weapon and one count of battery. The trial court granted 

defendant’s motion for downward departure based on section 

921.0026(2)(j), Florida Statutes (2019), over the state’s objection. The 

state appeals, claiming there was not competent substantial evidence to 

establish the elements required to justify a downward departure. We 

agree. As a result, we reverse and remand for resentencing.

The defendant was arrested due to two incidents involving the victim 

who was his girlfriend at the time. The girlfriend told the police that in 

mid-July 2019, while the defendant and the victim were driving, the 

defendant pulled out a semi-automatic firearm and placed it to the victim’s 

head. The defendant told the victim that he “should get rid of the problem” 

and told the victim that he should just kill her. 

The second incident, according to the victim, took place on July 31, 

2019. The defendant pulled the same firearm at the victim and told her 

not to move. The defendant said that he would “take her to a bridge and 
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dump her body and nobody would know . . . .” The victim also told the 

police of two other incidents where the defendant hit the victim in the face. 

In mid-August 2019, the defendant “backhanded” the victim to her nose 

and eye. 

The defendant filed a motion for downward departure pursuant to 

section 921.0026(2) arguing two grounds: (1) the victim was the initiator, 

willing participant, aggressor, or provoker of the incident pursuant to 

section 921.0026(2)(f), and (2) the defendant’s conduct was an isolated 

incident, it was committed in an unsophisticated manner, and the 

defendant had shown remorse pursuant to section 921.0026(2)(j). The 

trial court ultimately granted downward departure based only on section 

921.0026(2)(j). 

During the sentencing hearing, two witnesses were called to testify as 

to the defendant’s character, aspirations, and accomplishments, but 

neither could testify as to the charged incidents. The victim, however, 

testified that the defendant was both verbally and physically abusive, as 

well as controlling over her, during their short-lived relationship. 

The defendant testified on his own behalf as to his good character. The 

defendant denied the victim’s version of events, stating that the case was 

“based on hearsay, she say (sic). I’m not willing to sacrifice my freedom of 

a great mind that will never get put to use. It’s hard for me that I suffered 

in jail for nine months.” He also stated, “For someone just to say and run 

to the police station and say that I hit her and pulled my firearm and risked 

my freedom, that’s incredible.” 

When asked if he experienced any regret regarding what he did to the 

victim, the defendant stated, “I regret a lot of things. The most thing I 

regret is wasting our time.” The defendant then stated that this case “cost 

me nine months in jail. It cost me attorney fees. It’s probably going to 

cost me my freedom.” 

The defendant also continued to actively maintain his innocence. The 

defendant said to the court, “If I was committed or if I knew that I was 

guilty, Your Honor, I would say I did it.” When asked to address the victim, 

the defendant said, “If she wants an apology from me, I would say more 

that [sic] greatly that I’m sorry with no shame at all. I’m sorry for all the 

things that we argued about. I’m sorry for letting you down, basically. But 

she let me down, too.” 

After the hearing, the trial court granted the defendant’s motion for 

downward departure, finding that “it is the sentence of the Court with 
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regard to the motion for downward departure, I do find that the Court can 

depart based upon the fact that this was an isolated incident done in an 

unsophisticated manner for which the defendant has shown remorse.” 

The trial court imposed, over the state’s objection, two years of community 

control followed by three years of probation. The state appeals the trial 

court’s downward departure. 

We review a downward departure with a two-step process. State v. 

Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012). In the first step, “the 

appellate court must determine whether the trial court applied the correct 

rule of law, and whether competent, substantial evidence supports the 

trial court’s reason for imposing a downward departure sentence.” Id. In 

the second step, the appellate court then decides whether the trial court 

abused its discretion in granting a downward departure motion. Id.

Section 921.0026(2)(j) allows for a downward departure only when 

“[t]he offense was committed in an unsophisticated manner and was an 

isolated incident for which the defendant has shown remorse.” This court 

must reverse if it finds that any of the three elements are unsupported by 

competent substantial evidence. Bellamy v. State, 199 So. 3d 480, 482 

(Fla. 4th DCA 2016). 

In our analysis of the first step of the two-step process, we find that the 

trial court erred in determining there was competent substantial evidence 

of the defendant’s remorse. Since we find that there was insufficient 

evidence of remorse, and all three elements must be established, we need 

not determine if there was competent substantial evidence of the other two 

elements: isolated incident and unsophisticated manner. Based on this 

determination, we also need not reach the second step of the two-step 

process. 

Remorse is defined as “[a] strong feeling of sincere regret and sadness 

over one’s having behaved badly or done harm; intense, anguished selfreproach and compunction of conscience, esp. for a crime one has 

committed.” Black’s Law Dictionary (11th ed. 2019); accord State v. 

Lindsay, 163 So. 3d 721, 725 (Fla. 5th DCA 2015); see also State v. Milici, 

219 So. 3d 117, 122 (Fla. 5th DCA 2017) (stating that accepting 

responsibility for a defendant’s actions is a requisite to a finding of 

remorse). 

During the sentencing hearing, the defendant actively maintained his 

innocence and refused to accept responsibility for the crime. The 

defendant said to the court, “If I was committed or if I knew that I was 

guilty, Your Honor, I would say I did it.” Not only did he refuse to accept 
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responsibility for the crime, but he even insinuated that the victim 

fabricated the incidents: “For someone just to say and run to the police 

station and say that I hit her and pulled my firearm and risked my 

freedom, that’s incredible.” It goes without saying that “[i]t is impossible 

for a defendant who refuses to accept responsibility for an offense to show 

remorse for that offense.” State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 

2005); see also State v. Henderson, 152 So. 3d 49, 51 (Fla. 5th DCA 2014) 

(finding that denying a crime at the sentencing hearing is inconsistent with 

a finding of remorse). 

The defendant relies on one statement where he said he was sorry to 

the victim, but this statement was surrounded by words of blame: “If she 

wants an apology from me, I would say more that [sic] greatly that I’m 

sorry with no shame at all. . . . I’m sorry for letting you down, basically. 

But she let me down, too.” (emphasis added). Even in a light most favorable 

to the defendant, his half-hearted expression of being sorry for letting the 

victim down was more akin to sympathy than true remorse. “The fact that 

[the defendant] is sorry that [the victim] was injured . . . is sympathy and 

not remorse.” State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998) 

(expressing concern for the victim is not enough for a finding of remorse 

when the defendant does not accept responsibility for his actions). Once 

again, it should be clear that blaming someone else for your own conduct 

does not demonstrate remorse for your own actions.

When given an opportunity to express any “regret” about what the 

defendant did to the victim in this case, the defendant merely talked about 

himself when stating that he regretted “a lot of things.” Instead of 

recognizing the victim’s sufferings, he reiterated his own problems: “I’m 

not willing to sacrifice my freedom of a great mind that will never get put 

to use. It’s hard for me that I suffered in jail for nine months.” He did not 

express concern for the victim and her injuries, but rather expressed more 

concern over what the case cost him—namely money and his freedom: “It 

cost me nine months in jail. It cost me attorney fees. It’s probably going 

to cost me my freedom.” 

Finally, the defendant cannot rely, as he attempts to in this case, on 

taking a plea as proof of remorse since “the act of entering a plea and 

saying ‘I’m sorry’ is not enough to establish remorse.” State v. Centeno, 

192 So. 3d 705, 707 (Fla. 5th DCA 2016). The defendant cannot merely 

rely on his change of plea to demonstrate remorse. 

In Staffney v. State, 826 So. 2d 509, 513 (Fla. 4th DCA 2002), this court 

found no competent substantial evidence supporting the trial court’s 

finding of remorse where the defendant “never claimed responsibility for 
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his criminal behavior,” “maintained his innocence,” and “apologized for 

what had happened to the victim but continued to deny that he was 

responsible for his actions.” Similarly, in the present case, the defendant 

never clearly or forthrightly accepted responsibility for his own actions. 

Thus, we find there was not competent substantial evidence to support 

a finding of remorse by the defendant. Since all three elements must be 

demonstrated for the trial court to grant a downward departure, the

absence of lack of remorse by the defendant mandates that this case be 

reversed and remanded for a resentencing.

Reversed and remanded for resentencing.

KLINGENSMITH and KUNTZ, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.