STATE OF FLORIDA, APPELLANT,
v.
DYLAN RAY STEWART, APPELLEE
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Florida appellate court reversed a downward departure sentence because the trial court relied on statutory grounds unsupported by competent substantial evidence, and rejected the defendant's attempt to raise a non-statutory ground for the first time on appeal.
A trial court's downward departure sentence must be supported by competent substantial evidence of a legally valid ground, and a defendant cannot raise a new ground for departure on appeal that was not discussed at sentencing.
[1] A defendant cannot raise a new ground for downward departure on appeal that was not discussed at sentencing, as doing so violates the State's right to rebut and deprives…
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Join FLexlaw to unlock all legal intelligence“the ground asserted by Appellee on appeal was not discussed below and, thus, the State did not have an opportunity to rebut or oppose this ground”
Court's explanation for rejecting the defendant's attempt to raise a new ground for downward departure on appeal
Stewart entered an unconditional nolo contendere plea to multiple counts across five separate cases and received a downward departure sentence from th…
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The State appeals a downward departure sentence imposed by the trial court after Appellee entered an unconditional nolo contendere plea to multiple counts in *1087five separate cases. The State argues, and Appellee concedes, that the statutory-grounds relied upon by the trial court for the downward departure sentence were not supported by competent substantial evidence. Nevertheless, Appellee argues that we should affirm his sentence because the record contains evidence of a non-statutory ground for a downward departure sentence. We reject this tipsy-coachman argument because the ground asserted by Appellee on appeal was not discussed below and, thus, the State did not have an opportunity to rebut or oppose this ground. See State v. Hodges, 151 So.3d 531, 536 (Fla. 3d DCA 2014).
Accordingly, we reverse Appellee’s sentence and remand for resentencing at which the trial court may again impose a downward departure sentence if there is evidence to support a legally-valid ground. See Bryant v. State, 148 So.3d 1251, 1258 (Fla. 2014). However, because Appellee pled unconditionally to the offenses, he has no basis upon which to seek to withdraw his plea. See State v. Jerry, 19 So.3d 1167 (Fla. 1st DCA 2009).
REVERSED and REMANDED for re-sentencing.
ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bryant v. State, 148 So. 3d 1251 (Fla. 2014)
- Smith v. Southland Suites OF Ormond Beach, LLC., 148 So. 3d 1251 (Fla. 2014)
- State v. Hodges, 151 So. 3d 531 (Fla. 3d DCA 2014)
- State v. Tirone Alonza Jerry, 19 So. 3d 1167 (Fla. 1st DCA 2009)