State v. Jimenez-Porras

974 So. 2d 422, 2007 Fla. App. LEXIS 16375, 2007 WL 3034933

• Court: District Court of Appeal of Florida
• Decided: October 19, 2007
• Docket: 2D07-727
• Status: Published

Opinion

974 So.2d 422 (2007)

STATE of Florida, Appellant,
v.
Juan JIMENEZ-PORRAS, Appellee.

No. 2D07-727.

District Court of Appeal of Florida, Second District.

October 19, 2007. Rehearing Denied November 28, 2007.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.

CASANUEVA, Judge.

The State appeals a downward departure sentence for aggravated battery following a guilty plea by Juan Jimenez-Porras. As conceded on appeal, the court's reason for departing from the sentencing guidelines is not supported by competent, substantial evidence because there was no evidence presented on the claim. See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (requiring evidence of all three elements—isolated incident, committed in an unsophisticated manner, for which defendant has shown remorse—for departure under section 921.0026(2)(j), Fla. Stat.).

Jimenez-Porras argues only that the issue was not preserved. At sentencing, the State objected specifically to the court's finding that this was an isolated incident and pointed to the defendant's prior convictions and his subsequent violation of a protective injunction involving the victim of this crime. We conclude that the State preserved the issue for appeal because its "objection was `sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.'" Ayers, 901 So.2d at 944 (quoting in part section 924.051(1)(b), Fla. Stat.). Accordingly, we reverse. Pursuant to the State's suggestion on appeal, Jimenez-Porras should be given an opportunity to withdraw his plea on remand.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., concur.