State v. Perlman, 118 So. 3d 994

Sammy Perlman was sentenced below the statutory lowest permissible sentence for two felony petit theft convictions; the State appealed.
The trial court grounded its downward departure on section 921.0026(2)(j), finding the offenses were unsophisticated, isolated incidents, and that Perlman showed remorse.
The State argued the departure was legally erroneous because Perlman’s extensive prior record precluded a finding that the offenses were isolated incidents.
At sentencing the State, without objection, represented Perlman had multiple prior offenses: three robberies, 21 felonies, and seven forgery-related thefts.
The First District Court reviewed only the legal sufficiency of the departure ground (step one of the departure analysis) and whether competent, substantial evidence supported each statutory element.
The court concluded Perlman’s criminal history was too extensive to qualify the offenses as "isolated incidents," vacated the downward departure, and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether section 921.0026(2)(j) supports a downward departure here	State: Perlman’s record shows the offenses were not isolated; departure improper	Perlman: Offenses were unsophisticated, isolated, and he showed remorse, justifying departure	Held: Reversed — the record is too extensive to find the offenses were isolated
Whether extensive criminal history precludes "isolated incident" finding under 921.0026(2)(j)	State: Extensive priors bar an isolated-incident finding even if prior offenses differ	Perlman: Prior record does not negate that these specific offenses were isolated	Held: Extensive prior convictions preclude isolated-incident finding under controlling precedent
Standard of review for step-one departure determination	State: Court should review whether legal ground is supported by competent, substantial evidence	Perlman: Trial court’s factual finding should be upheld if supported	Held: Review is mixed law/fact; affirm only if correct law applied and supported by competent, substantial evidence; here support lacking
Remedy when statutory predicate for departure is unsupported	State: Vacate departure and remand for resentencing	Perlman: Maintain downward departure	Held: Vacate the downward departure and remand for resentencing

State v. Owens, 848 So.2d 1199 (Fla. 1st DCA 2003) (two-step departure analysis)
State v. Jerry, 19 So.3d 1167 (Fla. 1st DCA 2009) (standard for reviewing departure predicate)
Banks v. State, 732 So.2d 1065 (Fla. 1999) (mixed question review standard for departures)
State v. Subido, 925 So.2d 1052 (Fla. 5th DCA 2006) (elements of section 921.0026(2)(j) application)
State v. Ayers, 901 So.2d 942 (Fla. 2d DCA 2005) (extensive priors bar isolated-incident finding)
State v. Cooper, 889 So.2d 119 (Fla. 4th DCA 2004) (application of section 921.0026(2)(j))
State v. Waterman, 12 So.3d 1265 (Fla. 4th DCA 2009) (extensive prior convictions preclude isolated-incident finding)
State v. Gaines, 971 So.2d 219 (Fla. 4th DCA 2008) (prior convictions defeat isolated-incident basis)
State v. Stephenson, 973 So.2d 1259 (Fla. 5th DCA 2008) (same)