          Supreme Court of Florida
                                   ____________

                                  No. SC15-2389
                                  ____________

                             STATE OF FLORIDA,
                                 Petitioner,

                                         vs.

                         ADREA VERNIQUE WILEY,
                               Respondent.

                                 [February 9, 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. Ayers, 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 appellate review where the

State had argued in opposition immediately before the sentence was imposed and

during the same sentencing hearing.1 For the reasons explained below, we hold




      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
that apprising the trial court of the State’s opposition during the same proceeding is

sufficient to preserve the issue as to the legal grounds argued.

                                   I. Background

      In Wiley, 179 So. 3d at 482, the First District affirmed the trial court’s

decision to impose a downward departure sentence, ruling that the State failed to

preserve the issue for appeal even though the State argued in opposition during the

same proceeding in which the sentence was imposed. The First District explained

the facts as follows:

             [Wiley] 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
      [Wiley] guilty and imposed a downward departure sentence pursuant
      to section 921.0026(2)(d), Florida Statutes (2013), finding that
      [Wiley] required and was amenable to specialized treatment for her
      bipolar disorder.

Id. at 481-82.

      “At the sentencing hearing, the prosecutor argued against a downward

departure sentence, both generally and with specificity.” Id. at 482 (footnote

omitted). However, relying on its decision in State v. Stephens, 128 So. 3d 209

(Fla. 1st DCA 2013), the First District ruled that, “[a]lthough 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 . . . to preserve the issue for




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appellate review because the prosecutor did not also object to the sentence after it

was imposed.” 179 So. 3d at 482.

      Additionally, the First District in Wiley certified conflict with the Second

District’s decision in Ayers. Id. at 483. In Ayers, 901 So. 2d at 944, the Second

District held that the State’s objection to a downward departure at the sentencing

hearing that “I don’t see a legal reason to depart” was sufficient to preserve the

issue for appellate review. The Second District explained that “[t]he State’s

objection made clear that the State sought imposition of a nondeparture sentence

because there was no legal reason justifying a downward departure.” Id.

                                    II. Analysis

      In Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (emphasis omitted), this

Court “stated that proper preservation entails three components[:]”

      First, a litigant must make a timely, contemporaneous objection.
      Second, the party must state a legal ground for that objection. Third,
      “[i]n order for an argument to be cognizable on appeal, it must be the
      specific contention asserted as legal ground for the objection,
      exception, or motion below.” Steinhorst v. State, 412 So. 2d 332, 338
      (Fla. 1982) (emphasis added); accord Rodriguez v. State, 609 So. 2d
      493, 499 (Fla. 1992) (stating that “the specific legal ground upon
      which a claim is based must be raised at trial and a claim different
      than that will not be heard on appeal”).

“The purpose of this rule is to ‘place[ ] the trial judge on notice that error may have

been committed, and provide[ ] him an opportunity to correct it at an early stage of




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the proceedings.’ ” Id. (alterations in original) (quoting Castor v. State, 365 So. 2d

701, 703 (Fla. 1978)).

      Similarly, section 924.051(3), Florida Statutes (2014), provides that “[a]n

appeal may not be taken from a judgment or order of a trial court unless a

prejudicial error is alleged and is properly preserved or, if not properly preserved,

would constitute fundamental error.” And section 924.051(1)(b), Florida Statutes

(2014), explains that “ ‘[p]reserved’ means that an issue, legal argument, or

objection to evidence was timely raised before, and ruled on by, the trial court, and

that the issue, legal argument, or objection to evidence was sufficiently precise that

it fairly apprised the trial court of the relief sought and the grounds therefor.”

      In this case, at the sentencing hearing, the State clearly expressed its

objection to a downward departure sentence for Wiley as well as the legal grounds

for its objection. “The prosecutor generally asserted that ‘[t]here is not sufficient

evidence to justify any departure.’ ” Wiley, 179 So. 3d at 482 n.1 (quoting

sentencing hearing transcript). Then, “[t]he 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
      [Wiley’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,


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      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 [Wiley] off. . . .

Id. at 482 n.2 (emphasis omitted) (quoting sentencing hearing transcript).

      Because the prosecutor timely objected to the imposition of a downward

departure sentence at the same proceeding in which Wiley was sentenced and

stated the legal grounds for the objection, the issue was properly preserved for

appellate review as to the legal grounds asserted. See Harrell, 894 So. 2d at 940;

see also State v. Murray, 161 So. 3d 1287, 1289 (Fla. 4th DCA 2015).

                                  III. Conclusion

      The State’s timely opposition to Wiley’s downward departure during the

same proceeding in which the sentence was imposed fairly apprised the trial court

of the State’s objection as to the legal grounds asserted. Accordingly, the issue

was preserved, and we quash the First District’s decision in Wiley and approve the

Second District’s decision in Ayers.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and CANADY, JJ., concur.
LAWSON, J., did not participate.




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

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      First District - Case No. 1D15-858

      (Escambia County)

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Heather Flanagan Ross, Assistant Attorney General, Tallahassee, Florida,

      for Petitioner

Clinton Andrew Thomas, Public Defender, and Steven Lauren Seliger, Assistant
Public Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Respondent




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