Here's a new case where the prosecutor appealed because the judge was being too lenient. The prosecutor won.
The case, issued but not officially published by the Florida Court of appeals, Fourth District, is Florida v. Waterman.
It seems that Mr. Waterman's history of DUI arrests and convictions was of concern to the court, which said:
Thus, the issue for this Court is whether Waterman's criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Waterman's history consists of at least four misdemeanors, a felony aggravated battery with a deadly weapon for which he was sentenced about two years before he committed the current offenses, and a DUI that occurred less than a year before the current offenses. On one hand, his history is certainly not as extensive as the defendants in Ayers and Gaines, and the escape and accompanying charges were his first criminal charges as an adult. Nevertheless, his history is distinguishable from the defendants' histories in Fontaine and Randall because he has more than just one or two misdemeanor charges on his record. In addition, his history shows an emerging pattern of alcohol-related crimes, in that his current escape charge arose out of his second arrest for DUI within a year.
Waterman's record is more similar in scope to the defendant's record in State v. Tice, 898 So.2d 268 (Fla. 5th DCA 2005). In Tice, the defendant's scoresheet indicated that he was previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer. Id. at 269. Thus, the defendant's record fell somewhere in the middle of the spectrum of criminal records, where on one end lies the defendant with a clearly excessive record, and on the other end lies a defendant with no prior criminal record. The Fifth District Court of Appeal held that the defendant's record, while mid-spectrum, precluded his current offense from being labeled "isolated." See id. Thus, the statutory mitigator did not apply. Id. We agree with that analysis, and hold that Waterman's record is too extensive for his escape charge to be labeled "isolated" under section 921.0026(2)(j), Florida Statutes (2008).
Looking at Mr. Waterman's entire criminal history, which included assaulting law enforcement officers, it concluded that:
Accordingly, there is not competent, substantial evidence to support the trial court's ruling that Waterman's escape charge was an isolated incident. His criminal history precludes him from receiving a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Moreover, his argument that one of the other statutory mitigators might apply is not supported by the record. Thus, the trial court erred in departing downward from the sentencing guidelines to sentence Waterman on Count 1, escape. We reverse Waterman's downward departure sentence for Count 1 and remand for resentencing.
What cases like this do is send messages to trial court judges that they will be publicly embarrassed and reversed by the higher court if they downward depart from the sentence range.
