SEAN PATRICK EMKE v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: September 18, 2020
• Docket: 18-3943
• Status: Published

Opinion

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

September 18, 2020

SEAN PATRICK EMKE, ) ) Appellant, ) ) v. ) Case No. 2D18-3943 ) STATE OF FLORIDA, ) ) Appellee. ) )

BY ORDER OF THE COURT:

Appellant's motion for rehearing is denied. On the court's own motion, the prior

opinion dated July 17, 2020, is withdrawn, and the attached opinion is issued in its

place. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

SEAN PATRICK EMKE, ) ) Appellant, ) ) v. ) Case No. 2D18-3943 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed September 18, 2020.

Appeal from the Circuit Court for Sarasota County; Debra Johnes Riva, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Sean Patrick Emke appeals the imposition of a prison sentence of 636.45

months. While serving probation on a prior case of possession of child pornography,1

he was arrested and charged with forty new counts of possession of child pornography.

He entered an open plea of no contest on these new counts and admitted to violating

1Inlower court case number 2010-CF-001445AX, Mr. Emke pleaded nolo contendere to twenty counts of possession of child pornography. the terms of his probation. On Mr. Emke's criminal punishment code scoresheet, see

Fla. R. Crim. P. 3.992(a), the trial court designated one count of possession of child

pornography as the primary offense. The remaining thirty-nine counts of possession of

child pornography were scored as additional offenses. According to Mr. Emke's

scoresheet, his lowest permissible sentence, absent a downward departure, was 636.45

months in prison. The trial court sentenced Mr. Emke to 636.45 months in prison on

each count.

Mr. Emke raises two issues on appeal. We find no merit as to the first

issue and affirm without comment the circuit court's decision not to downward depart on

his sentences. As to his second issue, we affirm the sentences imposed based upon

our decision in Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019). But see

Gabriel v. State, 44 Fla. L. Weekly D2913 (Fla. 5th DCA Dec. 6, 2019), review granted

No. SC19-2155, 2020 WL 1888656 (Fla. Apr. 16, 2020).

Affirmed.

MORRIS, SLEET, and LUCAS, JJ., Concur.

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