THE STATE OF FLORIDA, APPELLANT,
v.
SHARON HENRIQUEZ, APPELLEE
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The State appealed a downward departure sentencing order in a burglary case, arguing the trial court failed to state reasons for the departure. The Third District Court of Appeal affirmed, holding that the State failed to preserve the issue by not objecting at sentencing or alerting the trial court to the necessity of departure reasons.
The appeal is affirmed because the State failed to preserve the issue for appellate review by not calling the trial court's attention to the need for downward departure reasons at sentencing. Even if preserved, remand rather than reversal would be the appropriate remedy to allow the trial court to state departure reasons.
[1] A party must bring the need for downward departure reasons to the trial court's attention to preserve the issue for appellate review.
[2] A sentence falling below the sentencing guidelines due to a suspended incarceration period is treated as a downward departure sentence.
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Join FLexlaw to unlock all legal intelligence“The State should have called to the trial court's attention the need for downward departure reasons.”
Establishes the State's affirmative duty to object to missing departure reasons during sentencing to preserve the issue for appeal.
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Join FLexlaw to unlock all legal intelligenceSharon Henriquez entered a plea agreement for burglary of a dwelling, with language permitting the defense to argue for a suspended sentence or downwa…
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COPE, Judge.
The State appeals a downward departure sentencing order. We affirm.
Defendant-appellee Sharon Henriquez entered into a plea agreement whereby she pled nolo contendere to the charge of burglary of a dwelling.1 The plea agreement indicated that the “defense may argue for a suspended sentence or downward departure.” The State inteiprets this to mean that the State agreed not to object to the defense argument for a suspended sentence or downward departure sentence. The State argued for a habitual offender sentence, or at least a guidelines sentence.
The trial court adjudicated defendant to be a habitual offender and imposed an incarceration sentence which was slightly above the guidelines. However, the court then suspended the incarcerative portion of the sentence and placed defendant on two years of community control, followed by ten years probation, ordered her to complete a specified residential drug treatment program, and imposed other conditions.
Because of the suspended sentence, the sentence fell below the guidelines. Consequently, as a matter of law it is treated as a downward departure sentence. See State v. Rinkins, 646 So. 2d 727, 729 (Fla.1994). At the sentencing proceeding, no departure reasons were given. The State did not object, or advise the court that downward departure reasons were necessary. The State has appealed the sentencing order, contending that the absence of downward departure reasons requires reversal.
We affirm, because the point is not properly preserved for appellate review. The State should have called to the trial court’s attention the need for downward departure reasons. See § 924.051, Fla. Stat. (1997); State v. Stafford, 711 So. 2d 612, 613, 23 Fla. L. Weekly D1235, D1235-36 (Fla. 4th DCA May 20, 1998); see also State v. Valdes, 677 So. 2d 107 (Fla. 3d DCA 1996); State v. Rodriguez, 673 So. 2d 187, 188 (Fla. 3d DCA 1996).2 We also note that, even if the point had been preserved, this would be a case in which we would remand in order to allow the trial court to state departure reasons, be cause there is no indication that the trial court realized that this sentence amounted to a departure disposition. See State v. Betancourt, 552 So. 2d 1107, 1108-09 (Fla.1989).
Affirmed.3
. The plea also covered violations of probation in other pending cases, the disposition of which is not challenged by the State here.
. For present purposes we assume that the State’s argument is not barred by the terms of the plea agreement.
. In considering this appeal we note that only defendants, but not the State, are given the thirty-day window for sentence correction under Florida Rule of Criminal Procedure 3.800(b). It would likely help facilitate the purposes of section 924.051, Florida Statutes, to add a counterpart provision for the State. This would need to be a fifteen-day window in order to conform to the time for the filing of a State notice of appeal, see Fla. R.App. P. 9.140(c)(3), unless the latter rule were amended to provide a thirty-day time for filing a State notice of appeal on sentencing issues. It would be our view that the Criminal Procedure Rules Committee should consider the issue.
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State v. Clay, 780 So. 2d 269 (Fla. 5th DCA 2001)…tment. This sentence constitutes a true split sentence. State v. Powell 703 So. 2d 444 (Fla.1997). Because the prison sentence is suspended, the sentence falls below the guidelines and is treated as a downward departure sentence. State v. Henriquez, 717 So. 2d 1087 (Fla. 3d DCA 1998). The State objected to the sentence at the time it was imposed. The Appellee argues that the State failed to preserve for review the issue of the validity of the departure sentence because it failed to make a timely and specific…
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State v. Carlson, 911 So. 2d 234 (Fla. 2d DCA 2005)…nt or to correct a scrivener’s error.” Fla. R.Crim. P. 3.800(b). Correction of a downward departure sentence neither corrects a scrivener’s error nor benefits the defendant. See State v. Clark, 770 So. 2d 237 (Fla. 4th DCA 2000); State v. Henriquez, 717 So. 2d 1087, 1088 n. 3 (Fla. 3d DCA 1998). Thus, the State could not preserve this error for review using rule 3.800(b). At the hearing on Carlson’s motion to mitigate sentence, the State argued that no downward departure sentence was warranted in this case an…
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State v. Colin Lincoln Ford, 739 So. 2d 629 (Fla. 3d DCA 1999)…Stat [*630] utes (1997). To preserve an issue for appeal the objection must be “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” § 924.051(l)(b), Fla. Stat. (1997); see State v. Henriquez, 717 So. 2d 1087 (Fla. 3d DCA 1998); see also Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998). As was true in Henriquez, the State’s appeal should be rejected for lack of preservation.…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- State v. Australia Ozell Rinkins, Jr., 646 So. 2d 727 (Fla. 1994)
- State v. Rodriguez, 673 So. 2d 187 (Fla. 3d DCA 1996)
- State v. Valdes, 677 So. 2d 107 (Fla. 3d DCA 1996)
- State v. Stafford, 711 So. 2d 612 (Fla. 4th DCA 1998)