STATE OF FLORIDA, APPELLANT,

v.

ADREA VERNIQUE WILEY, APPELLEE

Fla. 1st DCA | 2015-11-19

No. 1D15-858

WETHERELL, ROWE, and RAY, JJ., concur.

179 So. 3d 481 Florida District Court of Appeal, First District (2015) Positive Treatment

Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The appellate court affirmed the trial court's downward departure sentence because the State failed to properly preserve the issue for appeal by not objecting to the sentence after it was imposed.

Headnotes

[1] An issue is not preserved for appellate review if the State fails to object to a downward departure sentence after it is imposed, even if the State argued against the dep…

[2] A general objection to a sentence after it is imposed is insufficient to preserve for appellate review the State's challenge to a downward departure sentence.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Appellee pleaded no contest to offenses arising from a road rage incident. The trial court imposed a downward departure sentence based on Appellee's b…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Downward Departure Sentence Preservation Of Error For Appeal Sentencing Guidelines

Explore caselaw by topic → Browse Downward Departure Sentence cases and more on FLexlaw

Opinion of the Court

PER CURIAM.

Appellee pled no contest to. multiple offenses arising out of a “road rage” incident that started when she and the victim exchanged words in a Whataburger drive-*482thru line. The trial court adjudicated Ap-pellee guilty and imposed a downward departure sentence pursuant to section 921.0026(2)(d), Florida Statutes (2013), finding that Appellee required and was amenable to specialized treatment for her bipolar disorder. The State appeals, challenging the trial court’s decision to impose a downward departure sentence. We affirm because the issue raised on appeal was.not properly preserved below.

At the sentencing hearing, the prosecutor argued against a downward departure sentence, both generally1 and with specificity.2 Although the prosecutor’s argument clearly put the trial court on notice of the State’s opposition to a downward departure sentence, it was not sufficient under this court’s precedent to preserve the issue for appellate review because the prosecutor did not also object to the sentence after it was imposed. See State v. Stephens, 128 So.3d 209 (Fla. 1st DCA 2013) (“Although below the State argued in opposition to the appellee’s motion for a downward departure sentence, the State did not enter 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.”). Accordingly, we are compelled to affirm.

In reaching this decision, we have not overlooked the two3 cases — State v. Walker, 923 So.2d 1262 (Fla. 1st DCA 2006), and State v. Ayers, 901 So.2d 942 (Fla. 2d DCA 2005) — relied on by the State for the proposition that the issue raised on appeal was properly preserved despite the prosecutor’s failure to object after the sentence was imposed because it is clear from the record that the State was opposed to a downward departure. We distinguish Walker because in addition to arguing against a downward departure, the prosecutor in that case objected to the departure sentence after it was imposed by the trial court. See 923 So.2d at 1264 (“Following the trial court’s pronouncement of sentence, the State levied a general objection stating, ‘[a]nd, Your Honor, for the record, the State would object to the downward departure.’ ”) (alteration in original). And, because we are bound by Stephens, we certify conflict with Ayers to the extent it stands for the proposition that *483the prosecutor’s assertion that “I don’t see a legal reason to depart from the sentence in this matter” is sufficient to allow the State to challenge a downward departure sentence on appeal even though the prosecutor did not also object after the sentence was imposed. See 901 So.2d at 944 (holding that this sole comment, made before the trial court imposed the sentence, was sufficient to preserve the issue for appellate review because the comment “made clear that the State sought imposition of a nondeparture sentence because there was no legal reason justifying a downward departure”).

AFFIRMED; CONFLICT CERTIFIED.

WETHERELL, ROWE, and RAY, JJ., concur.

. The prosecutor specifically addressed both steps required for a departure sentence under Banks v. State, 732 So.2d 1065 (Fla.1999). As to step 1 (whether there wás a valid legal ground on which the trial court could depart), the prosecutor argued that “[t]he evidence is that [Appellee’s] specialized treatment is nothing more than taking her prescription, and I don’t believe ... that is the type of specialized treatment that [section 921.0026(2)(d) ] is designed to address.’’ And, as to step 2 (whether tire trial court should depart), the prosecutor argued that the court should not do so because

' in this case, we’re talking about a defendant with a lengthy criminal record, who’s been to prison twice before, who made numerous decisions leading up to this event and the day of this event. It could have ended a lot differently, a lot worse for [the victim]. Luckily it didn't [because] she fought [Ap-pellee] off,...

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

LEE v. State, 223 So. 3d 342 (Fla. 1st DCA 2017)

…e’s cross-appeal of the Lee’s downward departure sentences, I agree with the en banc majority that the recent Florida Supreme Court decision State v. Wiley, 210 So. 3d 658 (Fla. 2017) (Wiley II), which quashed our earlier decision in State v. Wiley, 179 So. 3d 481 (Fla. 1st DCA 2015) (Wiley I), preserves for our review the State’s objection to the downward departure sentences of Lee. I also agree with the en banc majority that now we can consider the merits of the State’s objection to the departure sentences,…
State v. Adrea Vernique Wiley, 210 So. 3d 658 (Fla. 2017)

…POLSTON, J. In State v. Wiley, 179 So. 3d 481 (Fla. 1st DCA 2015), the First District Court of Appeal certified conflict with State v. Ayere, 901 So. 2d 942 (Fla. 2d DCA 2005), regarding whether the State must object to a downward departure sentence after it is imposed to preserve the issue for…
State v. Adrea Vernique Wiley, 213 So. 3d 1108 (Fla. 1st DCA 2017)

…treatment for a mental disorder that is unrelated to substance abuse or addiction ... and the defendant is amenable to treatment.” The State appealed Appellee’s downward departure sentence. We affirmed on preservation grounds, see State v. Wiley, 179 So. 3d 481, 482 (Fla. 1st DCA 2015), but the Florida Supreme Court quashed that decision, see State v. Wiley, 42 Fla. L. Weekly S149, 210 So. 3d 658, 2017 WL 526510 (Fla. Feb. 9, 2017). On remand, we reexamined the record and the arguments presented in the par…

Authorities Cited

Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
State v. Ayers, 901 So. 2d 942 (Fla. 2d DCA 2005)
State v. Walker, 923 So. 2d 1262 (Fla. 1st DCA 2006)
State v. Hamner, 816 So. 2d 810 (Fla. 5th DCA 2002)
State v. Colbert, 968 So. 2d 1043 (Fla. 5th DCA 2007)
State v. Stephens, 128 So. 3d 209 (Fla. 1st DCA 2013)

Full citator, related cases, and AI research tools

Open in FLexlaw