section 921.0026(2) downward departure sentence in Florida

2019See State v. McElroy , 145 So.3d 866 , 869 (Fla. 2d DCA 2014) (concluding that a downward departure sentence pursuant to section 921.0026(2)(d) was not supported by competent substantial evidence when there was no evidence of an official diagnosis, whether the defendant required specialized treatment, or whether he would even be amenable to such treatment).

2019See State v. McElroy , 145 So.3d 866 , 869 (Fla. 2d DCA 2014) (concluding that a downward departure sentence pursuant to section 921.0026(2)(d) was not supported by competent substantial evidence when there was no evidence of an official diagnosis, whether the defendant required specialized treatment, or whether he would even be amenable to such treatment).

2018"Whether an incident is isolated is an issue of fact to be determined by the trial court and will not be reversed if there is competent substantial evidence to support it." State v. Fontaine , 955 So.2d 1248 , 1251 (Fla. 4th DCA 2007) (Warner, J., concurring).

2014Compare State v. Fontaine, 955 So.2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring specially) (“Having only two misdemeanor convictions ten years [prior] does not prevent a finding that this offense is an isolated incident.”), and State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999) (holding an incident was isolated where there was only one prior conviction), with State v. Gaines, 971 So.2d 219, 220-21 (Fla. 4th DCA 2008) (holding that where defendant had eighteen prior convictions including several forcible felonies, a downward departure under section 921.0026(2)(j) cannot be sus

2018See State v. Weaver, 23 So. 3d 829, 830 (Fla. 5th DCA 2009); State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006).

2018See State v. Weaver, 23 So. 3d 829, 830 (Fla. 5th DCA 2009); State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006).

2018See State v. Weaver, 23 So. 3d 829, 830 (Fla. 5th DCA 2009); State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006).

2018See State v. Weaver, 23 So. 3d 829, 830 (Fla. 5th DCA 2009); State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006).

2017This subsection permits downward departure where three elements are present: “(a) the offense must have been ‘committed in an unsophisticated manner,’ (b) the offense must have been ‘an isolated incident,’ and (c) the defendant must have ‘shown remorse’ for the offense.” State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (quoting § 921.0026(2)(j), Fla. Stat. (2003).

2007See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (requiring evidence of all three elements—isolated incident, committed in an unsophisticated manner, for which defendant has shown remorse—for departure under section 921.0026(2)(j), Fla. Stat.).

2015See Kinsey v. State, 135 So. 3d 424 (Fla. 1st DCA 2014), reh’g denied (Apr. 7, 2014), review granted, SC14-910, 2014 WL 4413264 (Fla. 2014).

2015See Kinsey v. State, 135 So.3d 424 (Fla. 1st DCA 2014), reh’g denied (Apr. 7, 2014), review granted, SC14-910, 2014 WL 4413264 (Fla.2014).

2012See, e.g., Gatto, 979 So.2d at 1233 ; Green, 971 So.2d at 148 .

2012See, e.g., Gatto, 979 So.2d at 1233 ; Green, 971 So.2d at 148. 1 Furthermore, the Fifth District's own case law is internally inconsistent.

2014See State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc); State v. Owens, 95 So.3d 1018, 1021 (Fla. 5th DCA 2012) (en banc).

2013In State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we found that the plain language of section 921.0026(2)(d) does not require a defendant to prove that the Department of Corrections “cannot provide the specialized treatment required” in order for a trial court to grant a downward departure under that subsection.

2013“That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)®, Florida Statutes.” State v. Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005); see also State v. Grant, 912 So.2d 321, 322 (Fla. 2d DCA 2004) (holding that undercover officer involved in sting operation was not victim of defendant’s drug offense as to support downward departure factor in section 921.0026(2)®).

2005State v. Grant, ___ So.2d ___, 2004 WL 3028212 (Fla. 2d DCA Dec. 3, 2004).

2026See State v. Brannum, 876 So. 2d 724 , 726–27 (Fla. 5th DCA 2004) (finding that this ground for departure was not established by competent substantial evidence where the trial court failed to find that the defendant was remorseful for his wrongful conduct); State v. Thompson, 844 So. 2d 814, 815 (Fla. 5th DCA 2003) (finding that departure under section 921.0026(2)(j) was improper where the trial court only made a finding as to the “unsophisticated manner” element and not the other two elements of “isolated incident” and “remorse”).

2026See State v. Brannum, 876 So. 2d 724 , 726–27 (Fla. 5th DCA 2004) (finding that this ground for departure was not established by competent substantial evidence where the trial court failed to find that the defendant was remorseful for his wrongful conduct); State v. Thompson, 844 So. 2d 814, 815 (Fla. 5th DCA 2003) (finding that departure under section 921.0026(2)(j) was improper where the trial court only made a finding as to the “unsophisticated manner” element and not the other two elements of “isolated incident” and “remorse”).

2024Potentially valid nonstatutory mitigators include enticement, State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012), sentencing manipulation, State v. Steadman, 827 So. 2d 1022, 1025 (Fla. 3d DCA 2002), sentencing entrapment, United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996), and a lower sentence of an equally or more culpable codefendant, Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987).

2024Potentially valid nonstatutory mitigators include enticement, State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012), sentencing manipulation, State v. Steadman, 827 So. 2d 1022, 1025 (Fla. 3d DCA 2002), sentencing entrapment, United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996), and a lower sentence of an equally or more culpable codefendant, Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987).

2024Potentially valid nonstatutory mitigators include enticement, State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012), sentencing manipulation, State v. Steadman, 827 So. 2d 1022, 1025 (Fla. 3d DCA 2002), sentencing entrapment, United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996), and a lower sentence of an equally or more culpable codefendant, Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987).

2024The trial court determined that mitigating circumstances reasonably justified a downward departure where Mr. Caulkins was substantially impaired because of the combination of his "upbringing, the poor environment in which he was raised, the abuse he has suffered, [and] his prior addictions." We see no distinction between these purported nonstatutory mitigating circumstances2 and section 921.0026(2)(c)—"[t]he capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired." Accordingly, we apply the same

2024Potentially valid nonstatutory mitigators include enticement, State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012), sentencing manipulation, State v. Steadman, 827 So. 2d 1022, 1025 (Fla. 3d DCA 2002), sentencing entrapment, United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996), and a lower sentence of an equally or more culpable codefendant, Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987).

2023See State v. Issel, 919 So. 2d 719, 720 (Fla. 2d DCA 2006) (explaining that duress usually involves some sort of coercion or threat).

2019In that case, the appellee testified that a counselor had told him that the counselor believed that he had manic depressive disorder with severe dependency issues, but the appellee "offered no proof of a formal diagnosis made by a physician." Id.; see State v. Paulk, 813 So. 2d 152, 154 (Fla. 3d DCA 2002) (holding that there was insufficient evidence to support the trial court's finding that appellee suffered from health problems where no medical evidence of his condition was offered).

2017See State v. Johnson, 197 So.3d 1268, 1269 (Fla. 2d DCA 2016) (reversing downward departure *123 where “[n]o testimony or evidence was presented to support the assertion that [defendant] was a minor participant in the offense”).

2017“For section 921.0026(2)(c) to apply, it is not enough that a defendant simply not know that what he was doing was criminal or wrong; the defendant must have been unable to understand that what he was doing was criminal or wrong.” State v. Johnson, 79 So.3d 146, 148 (Fla. 4th DCA 2012).

2015See Dixon v. State, 128 So.3d 972 (Fla. 1st DCA 2013), review dismissed, SC14-196, 2014 WL 1237108 (Fla.2014).

2015A defendant’s need for (and amenability to) specialized treatment of a physical disability is a valid reason for departure. § 921.0026(2)(d), Fla. Stat. (2013); see Childers v. State, 171 So.3d 170, 171-72 (Fla. 1st DCA 2015) (explaining that defense counsel sought a downward departure under § 921.0026(2)(d), based on the defendant’s “cirrhosis of the liver, gastrointestinal problems, and internal bleeding,” and noting that the state acknowledged defendant had “ ‘some pretty undeniable medical conditions’ ”).

2015See State v. VanBebber, 805 So.2d 918, 921 (Fla. 2d DCA 2001).