04-0068 STATE V. BROWNELL

State: Florida

Court: Florida Third District Court

Docket No: 04-0068 STATE V. BROWNELL

Case Date: 01/18/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006

THE STATE OF FLORIDA, Appellant, vs. JUSTIN BROWNELL, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 03-34091 CASE NO. 3D04-68

Opinion filed January 18, 2006. An Appeal from the Circuit Court for Miami-Dade County, Manuel A. Crespo, Judge. Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellant. Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellee. Before GREEN, RAMIREZ, and SUAREZ, JJ. SUAREZ, J. The State appeals a downward departure after a plea and sentence as a habitual offender to attempted robbery, battery and grand theft of a vehicle. We reverse.

The

defendant

was

charged

with

one

count

of

attempted

robbery, one count of battery and one count of third degree grand theft of a vehicle. At the defendant's arraignment, the

State requested that the defendant be sentenced as a habitual offender, and the prosecutor informed the trial judge that the lowest permissible sentence was 29.1 months in state prison. The defendant pled guilty. The trial judge sentenced the

defendant, upon his request, to two consecutive, 364-day terms in the county jail as a habitual offender over the State's

objection to the downward departure. The State now appeals the downward departure and claims error in the failure of the trial court to support the sentence either orally or in writing. The objection presented by the State to the trial judge to the downward departure along with the information provided by the State to the trial court of the lowest permissible sentence were sufficient to preserve the objection to the downward

departure for appellate review.

State v. Roberts, 824 So. 2d

908 (Fla. 3d DCA 2002); State v. Paulk, 813 So. 2d 152 (Fla. 3d DCA 2002); State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2002). Since the trial judge failed to state any reason for the downward departure, either orally or in writing, the conviction and sentence are reversed and the cause is remanded to the trial court to give the trial judge the opportunity to re-sentence the

2

defendant

and

provide

the

written

reasons

for

the

departure

sentence or to allow the defendant the opportunity to withdraw his plea and proceed to trial or be re-sentenced under the

guidelines.

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