State v. Joseph M. Milici
219 So. 3d 117
| Fla. Dist. Ct. App. | 2017Background
- Milici pled nolo contendere in 2013 to principal to robbery with a weapon and principal to aggravated assault with a deadly weapon; lengthy prison terms were suspended for community control and probation.
- Two months into community control he was arrested on controlled-substance sale charges; competency proceedings followed and he was later found competent.
- In April 2016 Milici admitted violating probation and entered an open nolo contendere plea to three counts of sale of a controlled substance.
- At sentencing the trial court heard character evidence and Milici's testimony minimizing his role and blaming others; the court announced it would impose a downward departure sentence.
- The court sentenced Milici to 30 days custody, one year community control, and three years probation—departing from an 88.5‑month guidelines minimum—and entered written findings citing (b), (c), and (j) of § 921.0026(2) as grounds.
- The State appealed, arguing the trial court's stated bases for departure were unsupported by competent, substantial evidence; the Fifth DCA reversed and remanded for resentencing.
Issues
| Issue | State's Argument | Milici's Argument | Held |
|---|---|---|---|
| Whether trial court correctly relied on § 921.0026(2)(j) (unsophisticated, isolated, remorse) to depart | No; record lacks findings/support that offenses were unsophisticated, isolated, or that Milici showed remorse | Trial court found offenses unsophisticated, isolated, and that Milici showed remorse warranting departure | Reversed: court failed to articulate unsophistication; record contradicts isolation and remorse findings |
| Whether § 921.0026(2)(b) (relatively minor participant) supported departure | No; no evidence Milici was a minor participant given role in planning, fraudulent prescription, and getaway driving | Milici was only the getaway driver and a less culpable accomplice | Reversed: no competent evidence he was a relatively minor participant |
| Whether § 921.0026(2)(c) (substantial impairment of capacity) supported departure | No; no expert evidence showing inability to appreciate criminality or conform conduct; competency found prior to plea | Milici has history of mental illness and prior evaluations suggesting impairment | Reversed: trial court did not articulate how mental issues substantially impaired appreciation of wrongdoing |
| Whether trial court abused discretion by relying on its own views rather than evidence | State: court relied on its belief that guidelines "serve no legitimate purpose," an impermissible basis for departure | Milici: trial court weighed credibility and mitigation and properly departed | Reversed: judge's personal belief cannot replace supported statutory grounds; remand for resentencing |
Key Cases Cited
- State v. Browne, 187 So. 3d 377 (Fla. 5th DCA 2016) (two-step review for downward departure)
- State v. Leverett, 44 So. 3d 634 (Fla. 5th DCA 2010) (standard for reviewing departures)
- State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005) (elements required for § 921.0026(2)(j))
- State v. Holsey, 908 So. 2d 1159 (Fla. 1st DCA 2005) (seller to undercover does not establish minor participant)
- Camacho v. State, 164 So. 3d 45 (Fla. 2d DCA 2015) (substance abuse may support (c) but requires proof)
- State v. Chesney, 509 So. 2d 380 (Fla. 2d DCA 1987) (judge's personal view that reduced sentence is appropriate is impermissible reason for departure)
- Jackson v. State, 64 So. 3d 90 (Fla. 2011) (remand allows proper departure if supported by valid grounds)