State v. Howard L. Hawkins, Jr.
225 So. 3d 943
| Fla. Dist. Ct. App. | 2017Background
- Defendant Howard Lee Hawkins, Jr. pled no contest to resisting an officer with violence (traffic-stop shove) and petit theft with prior convictions (attempted exit with a pressure washer).
- Sentencing used the Criminal Punishment Code; trial court imposed downward-departure sentences (time served + community control and probation on both counts).
- For resisting, the court cited two non-statutory reasons: an officer expressed no need for additional retribution in the PSI and neither officer was injured.
- For petit theft, the court relied on the fact the pressure washer never left the store and the store suffered no loss.
- The State appealed, arguing the trial court’s departure reasons were legally invalid under Florida law.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hawkins) | Held |
|---|---|---|---|
| Whether officer’s request for leniency supports downward departure | Officer’s non-recommendation is not a valid ground; departure invalid | Officer’s leniency shows mitigating circumstances warranting departure | Reversed — victim/officer request for leniency is not a valid reason for departure (invalid) |
| Whether absence of victim injury supports downward departure | Victim injury already accounted for in CPC scoresheet; cannot be basis for departure | Lack of injury shows offense was less severe and justifies departure | Reversed — lack of injury is not a separate valid ground; victim injury is considered in scoresheet (invalid) |
| Whether minimal actual loss (item not removed) supports downward departure for theft | Amount/loss already considered; lesser harm alone is not valid basis | No actual loss means offense was less heinous and merits departure | Reversed — lesser harm/actual loss not a legally valid ground for departure (invalid) |
| Whether remand permits resentencing | The State seeks reversal and resentencing absent valid grounds | Defendant implicitly seeks to preserve downward sentence | Remanded — trial court may resentence and may depart again only if it identifies legally valid grounds supported by competent substantial evidence |
Key Cases Cited
- State v. Browne, 187 So. 3d 377 (Fla. 5th DCA 2016) (standard for review of downward departure reasons)
- State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010) (review standard and CPC context)
- State v. Walker, 923 So. 2d 1262 (Fla. 1st DCA 2006) (de novo review of legal validity of departure grounds)
- State v. Hodges, 151 So. 3d 531 (Fla. 3d DCA 2014) (overview of CPC scoring and lowest permissible sentence)
- State v. McKnight, 35 So. 3d 995 (Fla. 5th DCA 2010) (non-statutory mitigating factors must align with legislative sentencing policy)
- State v. Ussery, 543 So. 2d 457 (Fla. 5th DCA 1989) (victim request for leniency is not valid ground for departure)
- State v. White, 532 So. 2d 1083 (Fla. 5th DCA 1988) (same)
- State v. Chapman, 805 So. 2d 906 (Fla. 2d DCA 2001) (cannot depart on factors already considered in the scoresheet such as victim injury)
- State v. Subido, 925 So. 2d 1052 (Fla. 5th DCA 2006) ("less heinous" commission alone is not a valid departure ground)
- State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989) (victim’s loss amount is not a valid reason for departure)
- Hankey v. State, 485 So. 2d 827 (Fla. 1986) (theft victim loss amount does not justify departure)
- Jackson v. State, 64 So. 3d 90 (Fla. 2011) (remand and reimposition guidance when valid grounds exist)