STATE OF FLORIDA, APPELLANT,
v.
KRISTINA WARD, APPELLEE

Fla. 2d DCA | 2008-01-18
No. 2D07-1501
WALLACE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.
973 So. 2d 597 Florida District Court of Appeal, Second District (2008)

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Synopsis

The State appealed a downward departure sentence imposed on Kristina Ward for violating her probation in four cases. The trial court sentenced Ward to 18 months in prison despite guidelines recommending 29.85 months minimum. The court reversed, holding that the State had sufficiently objected to the downward departure at sentencing, preserving the issue for appeal.


Holding

The State did not waive its appellate argument regarding the downward departure sentence because it sufficiently objected at sentencing. The trial court itself acknowledged the State's objection when it stated it would sentence Ward "over the [State's] objection," and the State reiterated its objection on the record after sentencing was pronounced.


Headnotes

[1] A State waives the right to appeal a downward departure sentence if it fails to timely object to the departure or the lack of reasons supporting it at the sentencing hear…

[2] An objection to a downward departure sentence is sufficiently precise to preserve the issue for appeal when it fairly apprises the trial court of the relief sought and th…

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Key Quotes

“over the [State's] objection”

The trial court's acknowledgment that it was imposing the sentence despite the State's objection, preserving the issue for appeal.

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Facts & Procedural History

Kristina Ward violated her probation in four separate cases. At sentencing, the sentencing guidelines called for a minimum prison sentence of 29.85 mo…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

The State of Florida appeals a downward departure sentence imposed on Kristina Ward after she admitted violating her probation in four separate cases.1 The sentencing guidelines provided for a mini-múm prison sentence of 29.85 months, but the trial court sentenced Ward to 18 months in prison. On appeal, Ward does not argue that there was a valid reason to support the downward departure sentence, but she contends that the State waived this argument because it failed to adequately object to the downward departure during her sentencing hearing. We conclude that the State did sufficiently object to the departure and reverse.

At the sentencing hearing, the State noted that it was not seeking a sentence at the bottom of the guidelines and argued that a sentence of thirty-six months was appropriate. The trial court recognized that the State objected to a departure sentence and pronounced that “over the State’s objection” it would sentence Ward to eighteen months in prison. Thereafter, the State again noted its objection to the departure sentence: “We would like to place our objection on the record that the defendant is not being sentenced to the bottom of the guidelines after her four violations of probation.”

Ward relies on State v. Hamner, 816 So. 2d 810 (Fla. 5th DCA 2002), and State v. Stafford, 711 So. 2d 612 (Fla. 4th DCA 1998), to support her argument that the State failed to object at the sentencing hearing and therefore waived this issue on appeal. In Hamner, 816 So. 2d at 812, the State urged that Hamner be given a guidelines sentence with substantial prison time, but after the sentence was pronounced, the State did not object on the ground that it was a downward departure from the guidelines or on the ground that no reasons were given for the departure. The Fifth District held that the sentencing issue was not preserved for appeal because the State failed to timely object to the sentence after it was imposed or to the lack of reasons to support the departure. Id. Similarly, in Stafford, 711 So. 2d at 612-13, the State did not object when the trial court advised Stafford of the sentence that would be imposed. In the present case, unlike Hamner and Stafford, the State did note its objection after the trial court announced that it would impose a downward departure sentence. Therefore, “[t]he State’s objection was ‘sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.’ ” State v. Ayers, 901 So. 2d 942, 944 (Fla. 2d DCA 2005) (quoting § 924.051(l)(b), Fla. Stat. (2003)).

Accordingly, Ward’s downward departure sentence is reversed. Pursuant to the State’s suggestion, Ward should be given the opportunity to withdraw her plea on remand. See State v. Jimenez-Porras, 974 So. 2d 422, 2007 WL 3034933 (Fla. 2d DCA Oct. 19, 2007).

Reversed and remanded with directions.

WALLACE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur. . In case numbers CRC 04-5474CFANO, CRC 04-10609CFANO, and CRC 04-14506CFANO, it was Ward's fourth violation of her probation. In case number CRC 04 — 15929CFANO, it was for her third violation of probation.


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