Geske v. State

378 So.3d 1199

Jeffery GESKE, Appellant,

v.STATE of Florida, Appellee.

No. 2D22-729

District Court of Appeal of Florida, Second District.

January 12, 2024

Appeal from the Circuit Court for Sarasota County; Donna Padar, Judge.

Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, PA., Sarasota, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

ON MOTION FOR WRITTEN OPINION BY ORDER OF THE COURT.

Appellant’s motion for written opinion is granted. The opinion issued September 1, 2023, is withdrawn, and the attached opinion is substituted in its place.

MORRIS, Judge.

Jeffery Geske appeals his sentences imposed for forty count’s of possession of child pornography (ten dr more images), following the denial of his motion for a downward departure.¹ We affirm for the reasons stated herein.

Geske pleaded no contest to the charges and was adjudicated guilty. Prior to sentencing, he filed a motion for a downward departure. In the motion, he relied on section 921.0026(2)(d), Florida Statutes (2021), to argue that he required specialized treatment for a mental disorder that was unrelated to substance abuse or addiction.² He also relied on section 921.0026(2)(j) to argue that the offense was. committed in an unsophisticated manner and that it was an isolated incident for which he had shown remorse. After a hearing, the trial court denied Geske’s motion and sentenced him to 180 months in prison for counts one to thirty and to 174.3 months in prison for counts thirty-one to forty, with some counts running concurrently and others running consecutively.

On appeal, Geske argues that fundamental error occurred as a result of several trial court errors. The State disputes this court’s jurisdiction over this appeal. The State also contends that Geske failed to preserve his arguments for appeal.

JURISDICTION AND PRESERVATION

The State first asserts that we lack jurisdiction to hear this appeal because it involves a denial of a motion for downward departure. We reject this argument for the reasons expressed in Barnhill v. State, 140 So. 3d 1055, 1060 (Fla. 2d DCA 2014).³

[1] We also reject the State’s argument that Geske was required to preserve his arguments at the sentencing, hearing or in a motion brought pursuant to Florida Rule of Criminal Procedure 3.800(b). Geske’s arguments on appeal address the. issues of failure to properly apply the two-part test for a downward departure, application of a general policy of not granting a downward departure, and reliance on improper sentencing factors. Those types of purported errors constitute due process violations resulting, in fundamental error. See, e,g., Gage v. State, 147 So. 3d 1020, 1022 (Fla. 2d DCA 2014) (involving consideration of impermissible sentencing factors); Price v. State, 278 So. 3d. 697, 701 (Fla. 4th DCA 2019) (same); Little v. State, 152 So. 3d 770, 771-72 (Fla. 5th DCA 2014) (concluding that applying general policy on motion for downward departure results in fundamental error). Because such errors are errors in the sentencing process, rather than errors in the sentences themselves, a rule 3.800(b) motion is not required to preserve the issues; in fact, rule 3.800(b) is an improper mechanism for preserving those issues for, appeal. See Hannum v. State, 13 So. 3d 132, 135 (Fla; 2d DCA 2009) (explaining that trial court’s error in consideration of improper factors during sentencing was an error in the sentencing process rather than an error in the sentencing order and thus rule 3.800(b) was not applicable); Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 2012) (explaining that a defendant cannot use a rule 3.800(b) motion to raise the issue of a trial court’s reliance on improper factors during sentencing). Further, because each of those types of errors would constitute a due process violation resulting in fundamental error, Geske was not required to preserve his arguments below. See Cromartie v. State, 70 So. 3d 559, 563 (Fla. 2011) ("[W]here there is no contemporaneous objection during a sentencing hearing and where the error does not qualify as a ’sentencing error’ that can be raised in a rule 3.800(b) motion, the error can still be considered and remedied on appeal if the error is fundamental." (citing Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008))). Thus we must proceed to address the merits of Geske’s arguments.

ANALYSIS

I. The trial court made it clear that it was exercising its discretion not to impose a downward departure sentence, and any error in applying an incorrect burden of proof was harmless.

[2–8] Geske first argues that the trial court failed to properly apply the two-part test that is required when a trial court considers a motion for a downward departure.

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 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.

Barnhill, 140 So. 3d at 1060 (quoting Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)). Typically, a trial court’s discretionary decision whether to grant a downward departure is reviewed for abuse of discretion, but where the issue involves a trial court’s application of an incorrect standard in determining whether to exercise its discretion, a de novo standard of review applies. Id. at 1060-61.

[9] A "defendant bears the burden of presenting competent, substantial evidence to support the reason for a downward departure." State v. Lackey, 248 So. 3d 1222, 1224 (Fla. 2d DCA 2018). "The level of proof necessary to establish facts that support a departure from, the lowest permissible sentence is a preponderance of the evidence." § 921.002(1)(f), Fla. Stat. (2021).

[10] Geske contends that the trial court never completed step one, i.e., it did not make a clear determination about whether it could or could not depart. And he asserts that a trial court cannot proceed to step two without first determining that a valid basis for departure has been proven. This court and others have reversed where a trial court’s statements are unclear as to whether it was rejecting a defendant’s factual basis or whether the defendant had established a factual basis but the trial court was exercising its discretion not to depart. See, e.g., Williams v. State, 286 So. 3d 892, 895, 898 (Fla. 2d DCA 2019) (reversing and remanding where there was uncertainty about whether trial court incorrectly determined it could not depart or whether it determined that it could depart but then exercised its. discretion not to depart); Camacho v. State, 164 So. 3d 45, 48 (Fla.2d.DCA 2015) (vacating sentence in part because record was unclear whether trial court’s ruling was based on rejection of some of the defendant’s expert’s opinions or whether the trial court made a legal error by concluding that no legal basis for a departure existed where trial court never stated that defendant failed to meet his evidentiary burden nor expressly indicated it was rejecting any portion of the expert’s testimony); Kovalsky v. State, 220 So. 3d 1192, 1195-96 (Fla. 4th DCA 2017) (reversing and remanding for resentencing where it was unclear whether the trial court determined that it should not depart (step two) "as opposed to determining that it was ’confined’ by the step one determination and thus downward departure was not an option").

Geske contends that in this case, the trial court expressed doubt about whether a valid basis had been proven and yet still ruled that a departure sentence was not appropriate in this case. Geske argues that this proves that the trial court did not properly apply the two-part test.

Our reading of the transcript reflects that the trial court made several findings relating to Geske’s evidence. In evaluating the statutory ground of the offense being isolated and unsophisticated and where the defendant has shown remorse, the trial court opined that it was "difficult to find that burden was met by the facts available to the defense." After addressing several aspects of Geske’s expert witness’s testimony, the trial court ultimately concluded that "I’m not going to find it appropriate, even if the - - every factor was met…. I do not find it appropriate to grant you a downward departure under the facts of this case." The State then interjected that "there has to be a firm pronouncement that you could depart, but you’re not." The trial court responded, "ok." The trial court then stated that it would make its ruling clear and stated the following:

I question whether or not the burden has been met for both the proposed downward departure[s] cited by the Defense. I do believe the State’s arguments against the downward departure [were] persuasive, and the Court adopts them. Even if a threshold was met beyond a reasonable doubt, or by clear and convincing evidence, or you know, beyond any reasonable doubt whatsoever, the Court does not find it appropriate under the circumstances to grant a

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