State v. Pinckney, 173 So. 3d 1139

Defendant Herbert Pinckney pleaded guilty to battery of a woman with whom he had a relationship and was sentenced to a downward departure of 12 months’ probation.
The plea was not part of a formal plea bargain; the record suggests the defendant expected a departure based on the court’s comments.
A nonvictim eyewitness (for the State) testified at sentencing and the trial court expressly found her testimony credible: she said the victim was outside the car and did not initiate the attack.
Pinckney testified that the victim spat on him and struck first; the court found his testimony not credible. Defense counsel additionally made out-of-court representations claiming corroboration for provocation.
The trial court credited defense counsel’s representations as “credible information from Defense Counsel” and granted the downward departure despite the lack of competent, substantial evidence that the victim was the initial aggressor.
The Second District reversed, holding the record lacked competent, substantial evidence to support the departure; a concurring opinion flagged procedural irregularities (inadmissible argument, off-the-record sidebar, and improper reliance on counsel’s representations).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether competent, substantial evidence supported a downward departure based on victim provocation	Insufficient evidence; only defense argument and defendant’s uncredited testimony supported provocation	Victim was the initial aggressor — supported by defendant’s testimony and defense counsel’s representations	Reversed: no competent, substantial evidence; defendant’s testimony lacked credibility and counsel’s statements are not evidence
Whether the court may rely on counsel’s representations and off-the-record statements to establish a legal basis to depart	Court may not rely on counsel’s unsworn representations as evidence	Counsel’s representations and prior-case references show provocation	Court erred: representations of counsel are not evidence; off-the-record sidebar and inadmissible matters cannot substitute for proof

State v. Kelleher, 142 So.3d 958 (Fla. 2d DCA 2014) (trial court must determine factual support before departing)
Kezal v. State, 42 So.3d 252 (Fla. 2d DCA 2010) (defendant bears burden to establish valid legal ground for departure)
Geralds v. State, 111 So.3d 778 (Fla. 2010) (arguments of counsel are not evidence)
Collins Fruit Co. v. Giglio, 184 So.2d 447 (Fla. 2d DCA 1966) (counsel arguments cannot substitute for evidence)
State v. Rife, 789 So.2d 288 (Fla. 2001) (discussion of mitigating factors including provocation)
Jackson v. State, 64 So.3d 90 (Fla. 2011) (court may resentence if valid basis for departure is later proven)
Banks v. State, 732 So.2d 1065 (Fla. 1999) (sentencing departures must be based on evidence)