              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


STATE OF FLORIDA,                            )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D13-4473
                                             )
MARTHA A. KUTZ,                              )
                                             )
             Appellee.                       )
                                             )

Opinion filed January 30, 2015.

Appeal from the Circuit Court for Manatee
County; John F. Lakin, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Diana K. Bock, Assistant
Attorney General, Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender, and
Clark E. Green, Assistant Public Defender,
Bartow, for Appellee.



DAVIS, Chief Judge.

             The State challenges the trial court's imposition of a downward departure

sentence following Kutz's no contest plea to one count of grand theft of more than

$100,000. Because the trial court based its departure sentence on a mitigator specific
to participation in drug court when there was no evidence presented to support that Kutz

suffered from a drug-related addiction, we reverse.

              Kutz embezzled a large amount of money over time from the company

where she worked, possibly due in part to her gambling and accumulated debts. Kutz

scored fifty-six points and a minimum of twenty-one months in prison on her

presentencing scoresheet. At sentencing, she argued for sentence mitigation based on

section 921.0026(2)(e), (j), and (m), Florida Statutes (2012). The trial court specifically

found that subsections (e) and (j) were not applicable to the mitigation of her sentence

but determined that subsection (m) did apply. That subsection allows for a downward

departure sentence where

              [t]he defendant's offense is a nonviolent felony, the defendant's
              Criminal Punishment Scoresheet total sentence points . . . are
              [sixty] points or fewer, and the court determines that the defendant
              is amenable to the services of a postadjudicatory treatment-based
              drug court program and is otherwise qualified to participate in the
              program as part of the sentence.

§ 921.0026(2)(m) (emphasis added).

              Ignoring the portion of section 921.0026(2)(m) that requires the defendant

be a candidate for a drug court program, the trial court accepted Kutz's argument and

sentenced her to a twenty-one-month prison sentence, suspended and to be served on

twenty-four months of community control followed by a twenty-year probationary term

with a restitution repayment schedule and completion of a twelve-month gambling

program.




                                            -2-
              The State maintains that this sentence constitutes an invalid downward

departure sentence1 that is not supported by competent, substantial evidence where

Kutz does not qualify for a drug court program and her only possible addiction relates to

gambling. We agree.

              A possible gambling addiction does not provide competent, substantial

evidence that Kutz qualified for a drug court program as required by the statute and

cannot support the use of subsection (m) as a basis for a downward departure of her

sentence. See State v. Barnes, 753 So. 2d 605, 607 (Fla. 2d DCA 2000). Despite

Kutz's argument to the contrary, the State sufficiently preserved its objection and put the

trial court on notice of the error prior to the imposition of the sentence, see id., and the

trial court rejected all of her other requested bases for sentence mitigation. Accordingly,

we reverse the downward departure sentence and remand for resentencing in

accordance with this opinion.

              Reversed and remanded.




ALTENBERND and CASANUEVA, JJ., Concur.




              1
              The imposition of a suspended sentence to be served on probation is a
downward departure sentence. See, e.g., State v. Brannum, 876 So. 2d 724, 725 n.1
(Fla. 5th DCA 2004) (providing a list of cases from various Florida courts stating that
probationary terms in lieu of suspended prison sentences that are otherwise required by
scoresheets constitute downward departures).


                                             -3-
