# Third District Court of Appeal

State of Florida

Opinion filed January 24, 2018.

The Opinion is not final until disposition of any further motion for rehearing

and/or motion for rehearing en banc. Any previously-filed motion for rehearing en

banc is deemed moot.

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No. 3D15-2876

Consolidated: 3D15-2877

Lower Tribunal Nos. 14-890-A-K & 14-891-A-K

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### The State of Florida

, Appellant,

vs.



### Derek Lang Shine Jr.,

Appellee.

Appeals from the Circuit Court for Monroe County, Mark H. Jones

, Judge.

Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas and

Jonathan Tanoos

, Assistant Attorneys General, for appellant.

Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Jeffrey Paul

DeSousa, Assistant Public Defenders, for appellee.

Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ JJ.

SUAREZ, J.

ON MOTION FOR REHEARING

The State of Florida moves for rehearing of this Court’s August 23, 2017opinion. We grant rehearing, withdraw our prior opinion and substitute the

following opinion in its stead.

The State of Florida appeals the downward departure sentence imposed upon

Defendant Derek Lang Shine on December 22, 2015 in connection with a

probation violation. 1 Finding that the trial court failed to provide a valid legal

ground for its downward departure, we reverse.

In 2015, Shine was convicted and sentenced to three years of drug offender

probation, pursuant to a plea agreement with the State. Later in 2015, Shine

violated his probation and the trial court revoked probation and sentenced him to

forty (40) months of prison followed by forty (40) months of probation for count

one and a concurrent term of forty (40) months prison, followed by a concurrent

term of twelve (12) months of probation for count two. The sentence imposed was

a downward departure sentence to which the State objected.

1 The State filed two separate appeals in connection with Defendant’s sentences

which were imposed simultaneously and which were intended to run concurrently.

In case number 15-2876 the State appeals the sentence imposed in connection with

lower tribunal case number 2014-CF-890 (i. sale of cocaine within 1000 feet of a

convenience business on September 4, 2014 and ii. unlawful use of a two-way

communications device). In case number 15-2877 the State appeals the sentences

imposed in connection with lower tribunal number 2014-CF-891 (i. sale of cocaine

within 1000 feet of a convenience business on September 3, 2014 and ii. unlawful

use of a two-way communications device). We hereby consolidate Third District

case numbers 15-2876 and 15-2877 under case number 15-2876. We note that

because both sentences were imposed at the same time and were intended to be

served concurrently, there was no necessity for the filing of two separate cases and

we encourage the State to appeal simultaneous sentences as a single case in the

future.

2The trial court’s written sentencing order states that the downward departure

was based on the fact that “Defendant has been granted a previous downward

departure based on a valid uncoerced plea agreement

. . . [and] it would be

inappropriate, too harsh and contrary to the principles of graduated sanctions to

now sentence the Defendant to 73.65 months imprisonment which is the lowest

permissible prison sentence, absent a downward departure.”

We conclude that the trial court’s reasoning does not amount to a valid legal

basis for the downward departure sentence imposed. See § 921.0026 Fla. Stat.

(2014); State v. Pita

, 54 So. 3d 557 (Fla. 3d DCA 2011); State v. Kasten

, 775 So.

2d 992 (Fla. 3d DCA 2000); State v. Nolasco

, 542 So. 2d 1052 (Fla. 3d DCA

1989). Consequently, we reverse and remand for resentencing within the

sentencing guidelines.

Reversed and remanded.

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