       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                       JOHN HENRY FOGARTY,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-3157

                          [December 17, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard Oftedal, Judge; L.T. Case No. 2011CF010150AMB.

    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, and John Henry Fogarty, South Bay,
for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for appellee.

                                EN BANC

                        ON MOTION FOR REHEARING

WARNER, J.

   We deny appellant’s motion for rehearing, withdraw our previous
opinion, and issue the following in its place.

   Appellant, John Fogarty, pled guilty to DUI manslaughter and sought
a downward departure sentence from his lowest permissible sentence of
124.5 months in prison. After a full hearing, the trial court denied the
downward departure and sentenced him to eleven years in prison. He
appealed, and counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), concluding that there were no arguable issues to raise.
Fogarty filed his own brief contesting the denial of the downward
departure, claiming that it was based upon “erroneous facts and
incompetent evidence.” The state’s answer brief contended that the claim
was not appealable, citing to Jorquera v. State, 868 So. 2d 1250 (Fla. 4th
DCA 2004). We affirm, finding that no issues of arguable merit exist, but
we issue this opinion for the limited purpose of receding from our decisions
in Jorquera and Marshall v. State, 978 So. 2d 279 (Fla. 4th DCA 2008),
where we declined review of trial courts’ discretionary decisions to deny
downward departure sentences. We hold that such determinations are
appealable under the process enunciated in Banks v. State, 732 So. 2d
1065 (Fla. 1999).

    In Jorquera, this court held that section 924.06(1), Florida Statutes,
allowing appeals from illegal sentences, did not give the appellate courts
jurisdiction to review a trial court decision to deny a downward departure.
Jorquera, 868 So. 2d at 1253. We cited Patterson v. State, 796 So. 2d 572,
574 (Fla. 2d DCA 2001), review denied, 817 So. 2d 849 (Fla. 2002), which
reached the same conclusion. Our decision in Marshall dismissed an
appeal of the denial of a downward departure sentence, citing to Jorquera.
Marshall, 978 So. 2d at 280.

   However, in Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014), the
Second District receded from Patterson after determining that subsequent
decisions from the supreme court could not be reconciled with Patterson’s
holding. The court concluded that both case law and Florida Rule of
Appellate Procedure 9.140 had expanded appeals to both illegal and
unlawful sentences. Id. at 1059-60. Specifically, it pointed to Banks v.
State, 732 So. 2d 1065 (Fla. 1999), in which the supreme court outlined
the procedure for both the trial court consideration of a departure sentence
and the standard of review on appeal. The supreme court said:

          A trial court’s decision whether to depart from the
      guidelines is a two-part process. First, the court must
      determine whether it can depart, i.e., whether there is a valid
      legal ground and adequate factual support for that ground in
      the case pending before it (step 1). Legal grounds are set forth
      in case law and statute, and facts supporting the ground must
      be proved at trial by “a preponderance of the evidence.” This
      aspect of the court’s decision to depart is a mixed question of
      law and fact and will be sustained on review if the court
      applied the right rule of law and if competent substantial
      evidence supports its ruling.

                                  ****

         Second, where the step 1 requirements are met, the trial
      court further must determine whether it should depart, i.e.,
      whether departure is indeed the best sentencing option for the

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      defendant in the pending case. In making this determination
      (step 2), the court must weigh the totality of the circumstances
      in the case, including aggravating and mitigating factors.
      This second aspect of the decision to depart is a judgment
      call within the sound discretion of the court and will be
      sustained on review absent an abuse of discretion.
      Discretion is abused only where no reasonable person would
      agree with the trial court’s decision.

Id. at 1067-68 (footnotes omitted, bolded emphasis supplied). Thus, the
supreme court did allow for appellate review of both steps of the procedure
for downward departure, albeit using different standards of review. The
first step is reviewable for legal error and competent substantial evidence.
The second step as to whether to downwardly depart is reviewable for an
abuse of discretion. But see Patrizi v. State, 31 So. 3d 229, 231 (Fla. 1st
DCA 2010) (appellate court may review only instances of legal error in
defining or applying trial court’s discretionary authority). For these
reasons, we recede from Jorquera and Marshall.

   Here, the trial court applied the two-prong standard set forth in Banks.
In doing so, it determined that there was a ground for a downward
departure, i.e., that it was an isolated incident and appellant showed
remorse. Nevertheless, the trial court declined to downwardly depart
because of the level of appellant’s intoxication. The court also commented
that driving while intoxicated is not an accident. In his pro se brief,
appellant challenges the factual predicate for his blood alcohol level, but
no objection was made that the state’s statements were in error, and
appellant did not offer any evidence to contradict the blood alcohol level.
Thus, the issue is not preserved. The trial court did not abuse its
discretion in denying a downward departure. Additionally, there are no
other issues which could be advanced in good conscience on appellant’s
behalf.

   Accordingly, we affirm the conviction and sentence.

DAMOORGIAN, C.J., STEVENSON, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE,
CONNER, FORST and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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