The Fourth DCA has receded from their prior decisions in Jorquera v. State, 868 So. 2d 1250 (Fla. 4th
DCA 2004) and Marshall v. State, 978 So. 2d 279 (Fla. 4th DCA 2008), where they declined review of a trial courts’ discretionary decisions to deny downward departure sentences. In JOHN HENRY FOGARTY, Appellant, v. STATE OF FLORIDA, Appellee, No. 4D13-3157, decided December 17, 2014, they held that such determinations are appealable under the process enunciated in Banks v. State, 732 So. 2d 1065 (Fla. 1999).
In Jorquera, the 4th DCA court held that section 924.06(1), Florida Statutes, allowed appeals from illegal sentences, but did not give the appellate courts jurisdiction to review a trial court decision to deny a downward departure. Jorquera, 868 So. 2d at 1253. They 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. Their 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. That 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 defendant in the pending case.
In making this determination (step 2), the trial 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.