The issue for our consideration in this case is whether the tidal court correctly applied the law in denying appellant’s motion for downward departurе. Because the trial court incorrectly applied the law as to two of the downward departure elements, and because the record does not establish that the trial court properly applied the law as to the third element, we reverse and remand for the trial court to reconsider this motion.
Appellant pled guilty to manslaughter with a firearm. During the plea hearing, the state proffered the following facts. The victim came to apрellant’s residence on the day of the crime. Appellant and the victim then drove to the codefendant’s residence to allegedly get marijuana, but the codefendant was not there. ' Appéllant left her son at the codefendant’s'residence and arranged to meet the codefendant at another location. When they arrived, the codefendant jumped into the car and shot the victim in the head. According to witnesses at the codefendаnt’s residence, appellant knew a robbery was going to take place.
Appellant testified that although she and the codefendant discussed rоbbing the victim, they did not plan anything. Appellant claimed she did not know the codefendant was going to rob the victim. Appellant stated that she was sorry and that she had made a mistake.
Prior to sentencing, appellant moved for a downward departure on the ground that “[t]he offense was committed in an unsophistiсated manner and was' an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2011). The trial court denied the motion, resulting in the instant appeаl.
“A trial court’s decision whether to depart from the guidelines is a two-part process.” Banks v. State,
For seсtion 921.0026(2)(j) to be applicable, all three elements must be present: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incidеnt, and (3) the defendant has shown remorse. Staffney v. State,
In denying the motion for downward departure, the trial court incorrectly applied the law as it pertains to the elements of remorse and isolated incident. As to remorse, the trial court stated:
I will tell you that remorse is not something that this Court can consider in sentencing. I appreciate the fact thаt [appellant] said that she was sorry, but lack of remorse has never been, or re-morsefulness has never been one of those factors that this Court can use in determining a proper sentence.
Generally, it is improper for a sentencing court to consider the defendant’s lack of remorse. Rankin v. State,
As to whether the offense was an isolated incident, the trial court stated:
Being an isolated incident, you only need one time to be an acсomplice and/or principal to murder for this to occur.
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Isolated, as I said, I don’t think that applied to this case because you only need one shot to kill somebody and if you helped in the planning under the principal instruction she’s as guilty as the co-defendant is and she’s held responsible for everything that he did in this case....
The trial court’s application of isolated incident is not supported by case law. An offense is not isolated if a defendant has an еxtensive prior criminal record. See State v. Waterman,
Finally, the' trial court considered whether the offense was committed in an unsophisticated manner. Courts have defined a crime as unsophisticated when “the acts constituting the crime are ‘artless, simple, and not refined.’” State v. Walters,
Some of the statements made by the triаl court indicate that it may have correctly understood the law as to this element. Specifically, the trial court stated:
What concerns this Court is that this wаs not a random stranger that they picked out as they were passing by and said, let’s rob this person, get some money. This was someone that [appellant] knеw and but for the fact that he knew her I don’t think Ms., the co-defendant could of even gotten close to him or lured him anywhere or gotten him to do anything. But peoрle let then-guards down when they know someone. Who’s to know what the alleged victim, or the victim in this case would of [sic] done if it was just an isolated, you know, a random stranger thing. But he trusted [appellant], and I think those types of crimes are a lot different than stranger to stranger, when you have one party that knows the pаrty, has had intimate relationships with that victim", made him easy pickings for her to set him up, for him to be robbed, and eventually killed.
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[A]s I said, she supplied the mark, for lack of a better term, wasn’t somebody they .just saw walking on the street. She, [appellant], was the person that provided the target for this robbery and unfortunately was killed during the commission of this robbery.
These statements indicate that the trial court considered the planning that went into the crime and the fact that appellant lured and set up the victim. These factors, in most cases, are appropriate to consider in determining whether a crime is committed in an unsophisticated manner. See Fureman,
However, other statements made by the trial court indicate that it may have incorrectly applied the law. In finding that the offense was not sophisticated, the trial court also discussed State v. Warner,
I think unsophisticated goes more to like RICO’s and things like that where you just stumble into something and-you’re unwittingly, like a conspiracy or something, or somebоdy hands you a gift and says, here, stand here with this and the police come and you get arrested and you’re holding the bag and it’s full of cocaine. I think that that is one of those circumstances where it’s unsophisticated, somebody just gave it to them.
However, the supreme court disapproved of Warner in State v. VanBebber,
Accordingly, we reverse and remand for the trial court to reconsider the motion for downward departure in light of this opinion. See Ellis v. State,
Reversed and remanded for reconsidér-ation.