                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                   NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-858

ADREA VERNIQUE WILEY,

      Appellee.


_____________________________/

Opinion filed November 19, 2015.

An appeal from the Circuit Court for Escambia County.
Terry Terrell, Judge.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellee.




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-thru line. The trial court adjudicated Appellee 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


1
  The prosecutor generally asserted that “[t]here is not sufficient evidence to justify
any departure.”
2
  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 was
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 the 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 [Appellee] off . . . .
                                           2
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



3
  The State also cited State v. Colbert, 968 So. 2d 1043 (Fla. 5th DCA 2007), but in
that case the court held that the State’s challenge to a downward departure sentence
was not preserved for appellate review because the prosecutor only made a general
“for the record” objection to the sentence. See also State v. Hamner, 816 So. 2d 810,
812 (Fla. 5th DCA 2002) (affirming downward departure sentence because although
the prosecutor opposed reinstatement of the defendant’s probation and urged that he
be given a guidelines sentence, the prosecutor did not object to the non-guidelines
sentence after it was imposed).
                                            3
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 the

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.




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