STATE OF FLORIDA, APPELLANT,
v.
DESMOND L. SWILLEY, APPELLEE
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Florida's appeal of a downward departure sentence was affirmed because the State failed to preserve the issue by objecting at sentencing, despite earlier stating it would not agree to a departure.
A departure sentence issue is not preserved for appellate review when the State fails to object at the sentencing hearing, even if it previously stated it would not offer a departure.
[1] To successfully challenge a departure sentence on appeal, the state must preserve the issue by objecting during the sentencing hearing.
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Join FLexlaw to unlock all legal intelligenceDesmond Swilley pleaded guilty to third degree grand theft and had nine prior felony convictions and multiple prior misdemeanors, scoring 34.35 months…
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The State of Florida appeals the downward departure jail and probationary sentence imposed on Desmond L. Swilley, following his plea to a third degree felony grand theft charge. Based upon his extensive prior criminal record of nine prior felony convictions and even more prior misdemeanors, Swilley scored 34.35 months in prison as a minimum legal sentence on his criminal punishment score-sheet. Following an off-the-record discussion with the prosecutor and defense counsel, the trial court departed downward, explaining that a prison sentence seemed “unreasonable” given the nature of the crime. The trial judge also discussed the need for restitution, but never clearly identified this as a justification for the departure sentence. Although the State made it clear, for the record, that it would not offer a departure sentence as part of a negotiated plea, the State never *823objected to the court’s imposition of a departure sentence. Rather, the prosecutor told the judge that if she “would like to mitigate, that’s on you, that’s not from the State.” Accordingly, we find that the issue was not preserved for appellate review, and affirm. See State v. Colbert, 968 So.2d 1043 (Fla. 5th DCA 2007) (holding that to successfully challenge a departure sentence on appeal the state must properly preserve the issue by objection during the sentencing hearing).
AFFIRMED.
PALMER, LAWSON, and JACOBUS, JJ., concur.
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Citator
Cited By
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State v. Stephens, 128 So. 3d 209 (Fla. 1st DCA 2013)…ter an objection to the downward departure sentence. When the State has failed to enter an objection, general or otherwise, to a downward departure sentence, Florida courts have found the issue unpreserved for appellate review. See State v. Swilley, 73 So. 3d 822, 822-23 (Fla. 5th DCA 2011) (finding assertion of error in downward departure sentence was not preserved for appellate review where the State never objected to imposition of the downward departure sentence); see also Douglas v. State, 913 So. 2d 123…
Authorities Cited
- State v. Colbert, 968 So. 2d 1043 (Fla. 5th DCA 2007)