The defendant below appeals her convictions of both resisting an officer without violence and resisting a different officer with violence. She asserts that these convictions constitute double jeopardy and thus fundamental error. In addition, she chаllenges her legal, bottom-of-range guidelines sentence, imposed after the trial court denied her request for a downward departure. For the following reasons, thе convictions and sentence are affirmed.
After a traffic stop, Appellant was arrested and transported to the police station by Officer Michael Hеnagan. When Officer Henagan parked in the police station parking lot, the аppellant attempted to escape on foot but was promptly apprehended by Officer Henagan and escorted to the breath test room. Oncе inside, the appellant refused to remain seated, struggled with Officer Steven Jones, and “stomped on” Officer Jones’ foot as she resisted his efforts to restrain her in her seаt. Appellant was charged with various crimes, including resisting officer Jones with violence (Count II) and resisting Officer Henagan without violence (Count VI). She entered a plea of nolo contendere and was adjudicated guilty of all charges.
Appellant’s characterization of her convictions for both resisting an officer with violence and resisting an officer without violence as double jeopardy and fundamental error must fail. Appellant’s acts resisting Officer Henagan and later, Offiсer Jones, were not part of a single criminal episode. “The test for determining whether two crimes occurred in the same criminal episode is whether there was а temporal break between the crimes, such that the defendant had an opportunity to pause, reflect, and form a new criminal intent.... If there was such a break, thеn the crimes occurred in separate criminal episodes and may be punishеd separately.”
Beahr v. State,
Here, the appellant had an opportunity, after her flight in thе parking lot was thwarted by Officer Henagan, to pause, reflect, and decide not to physically resist Officer Jones with violence in the breath test office. Accordingly, the crimes occurred in separate criminal episodes, the convictions were not fundamental error, and Appellant was not “twice put in jeopardy fоr the same offense.” Art. I, § 9, Fla. Const.
Regarding the trial court’s denial of a downward departure and entry of the legal, guidelines sentence, this sentence is not subject to appeal by the defendant under section 924.06, Florida Statutes. See also, Fla. R.App. P. 9.140(b)(1). “Subdivision (b)(1) lists the only matters that may be аppealed by a criminal defendant, and it is intended to supersede all other rules of practice and procedure.” Fla. R.App. P. 9.140, Comm. Notes to sub-div. (l)(b), 1977 Amdmt. (emphasis suрplied). The sentences which a defendant may appeal are limited to: an illegal sentence, a sentence which exceeds the statu *231 tory maximum for the offense, and as “otherwise provided by law.” § 924.06(l)(d) & (l)(e), Fla. Stat.; Fla. R.App. P. 9.140(b)(1)(E) & (b)(1)(F).
This court has recognized that “[t]he courts оf Florida have consistently held that the statutory scheme does not give the appellate courts the authority to review a trial court’s decision to deny a request for a downward departure sentence.”
Stancliff v. State,
The state candidly disclosed to this court the opinions in
Hines v. State,
In both Hines and McCorvey, the trial courts assumed that under the circumstancеs of those cases, they were precluded as a matter of law from considеring facts which might have qualified the defendants for mitigating circumstances to support dоwnward departures. In contrast, the trial court in this case heard testimony and evaluated evidence to determine if the defense had established the mitigating factor provided in section 921.0026(2)(d), Florida Statutes. The court’s application of the statute to the facts presented was not “a misconception about its discretion in sentencing,” as was the case in both Hines and McCorvey. The guidelines sentence entered here is not subject to appeal by the appellant/defendant.
AFFIRMED.