STATE OF FLORIDA, APPELLANT,
v.
JULIO ANGEL ROSA, APPELLEE
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The State appealed downward departure sentences imposed on Julio Angel Rosa for cocaine possession and sale charges. The Florida appellate court reversed because the trial court's stated reasons for the departure lacked competent substantial evidence in the record.
The court reversed the departure sentences because the record contained no competent substantial evidence to support the trial court's stated reasons for departure. On remand, Rosa must be afforded the opportunity to withdraw his plea since he entered it in exchange for the departure sentence.
[1] A downward departure sentence will be reversed on appeal absent competent substantial evidence in the record to support it.
[2] Off-the-record discussions with the trial court are insufficient to support a downward departure sentence.
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Join FLexlaw to unlock all legal intelligence“An appellate court will reverse a departure sentence absent competent substantial evidence in the record to support it.”
Establishes the standard of review for departure sentences requiring factual support in the appellate record.
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Join FLexlaw to unlock all legal intelligenceOn January 7, 2000, Rosa pleaded no contest to two counts of cocaine possession and one count of sale within 1000 feet of a place of worship in exchan…
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PARKER, Acting Chief Judge.
The State appeals the downward departure sentences imposed upon Julio Angel Rosa in two consolidated cases for two counts of possession of cocaine and one count of sale of cocaine within 1000 feet of a place of worship. Because the record does not provide competent substantial evidence to support the departure, we reverse and remand this case for further proceedings.
On January 7, 2000, Rosa agreed to enter a plea of no contest to the charges in exchange for a below guidelines sentence. Defense counsel referred to a previous plea conference where the factors relating to the departure reasons were allegedly established. The trial court withheld adjudication and sentenced Rosa to probation on each count.1 The judgment and sentence lists four reasons to support this downward departure. However, the record does not contain a transcript of the referenced plea conference. In fact, the record does not contain any evidence what soever to support the court’s listed reasons for a departure from the guidelines.
An appellate court will reverse a departure sentence absent competent substantial evidence in the record to support it. See Banks v. State, 732 So. 2d 1065, 1067 (Fla.1999). We agree with the State’s contention that the record in this case does not contain competent substantial evidence to support the downward departure. See State v. Sawyer, 753 So. 2d 737, 738 (Fla. 2d DCA 2000) (finding previous off-the-record discussions with the trial court insufficient to support a downward departure). Accordingly, we reverse.2 Because Rosa entered his plea in exchange for the departure sentence, on remand Rosa must be afforded the opportunity to withdraw his plea. See State v. Stewart, 749 So. 2d 555, 555 (Fla. 2d DCA 2000).
Reversed.
GREEN and STRINGER, JJ„ Concur. . The court orally pronounced a sentence of three years’ probation on each count with two years to run concurrently, which does not appear to be a legal sentence. Moreover, the orders of probation, which reflect sentences of two concurrent terms of two years’ probation, conflict with the trial court’s oral pronouncement. We do not address these issues on appeal because they are rendered moot by our reversal in this case.
. Rosa argues that the State failed to preserve this issue for review by failing to object at sentencing. However, the sentencing transcript reflects that the prosecutor attempted to voice an objection just before the hearing was terminated. The trial court cut off the prosecutor during his objection by stating, "The record will reflect the state’s objection.” While the prosecutor was not given the opportunity to explain the grounds for his objection, the only possible basis for the objection is the downward departure sentence. Therefore, we conclude that this issue was properly preserved for review.
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State v. Scott, 879 So. 2d 99 (Fla. 2d DCA 2004)…ntencing court’s statement that the court would impose the downward departure sentence. See Braley, 832 So. 2d at 256; State v. Teal, 831 So. 2d 1254, 1256 (Fla. 2d DCA 2002); State v. Nicolosi, 830 So. 2d 281, 282 (Fla. 2d DCA 2002); State v. Rosa, 774 So. 2d 730, 731 (Fla. 2d DCA 2000); State v. Knopp, 765 So. 2d 164, 165 (Fla. 2d DCA 2000); Petringelo, 762 So. 2d at 966. Accordingly, the sentence of twenty-four months’ probation with restitution is reversed and the matter remanded to the circuit court for…
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Roberts v. State, 43 Fla. L. Weekly S34 (Fla. 3d DCA 2018)…prosecution in an order of probation was preserved where “it appears from the record that the trial court may have interrupted a proper objection”). But the cases upon which he relies are easily distinguishable. For instance, in State v. Rosa, 774 So. 2d 730 (Fla. 2d DCA 2000), even though the State did not explain the grounds for its objection, the Second District concluded that the State’s argument was properly preserved because the trial court cut off the prosecutor’s objection by 6 stating, “T…
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State v. Gilson, 800 So. 2d 727 (Fla. 5th DCA 2001)…e counts: two counts of burglary of a dwelling with different victims (2F), possession of cannabis under 20 grams (1M); and two counts of grand theft of a .22 revolver (same victim) (3F). . Banks v. State, 732 So. 2d 1065 (Fla.1999); State v. Rosa, 774 So. 2d 730 (Fla. 2d DCA 2000); E.S.B. v. State, 793 So. 2d 1181 (Fla. 5th DCA 2001); State v. White, 755 So. 2d 830 (Fla. 5th DCA 2000). . State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999). . § 921.0016(5), Fla. Stat (1997); State v. Sanders, 728 So.…
Authorities Cited
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- State v. Stewart, 749 So. 2d 555 (Fla. 2d DCA 2000)
- State v. Sawyer, 753 So. 2d 737 (Fla. 2d DCA 2000)