State v. Swilley

District Court of Appeal of Florida

State v. Swilley

73 So. 3d 822, 2011 Fla. App. LEXIS 16732, 2011 WL 5108550

CourtDistrict Court of Appeal of Florida

DecidedOctober 21, 2011

Docket5D11-397

StatusPublished

Cited by1 cases

This text of 73 So. 3d 822 (State v. Swilley) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Swilley, 73 So. 3d 822, 2011 Fla. App. LEXIS 16732, 2011 WL 5108550 (Fla. Ct. App. 2011).

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Opinion

PER CURIAM.

The State of Florida appeals the downward departure jail and probationary sentence imposed on Desmond L. Swilley, following his plea to a third degree felony grand theft charge. Based upon his extensive prior criminal record of nine prior felony convictions and even more prior misdemeanors, Swilley scored 34.35 months in prison as a minimum legal sentence on his criminal punishment score-sheet. Following an off-the-record discussion with the prosecutor and defense counsel, the trial court departed downward, explaining that a prison sentence seemed “unreasonable” given the nature of the crime. The trial judge also discussed the need for restitution, but never clearly identified this as a justification for the departure sentence. Although the State made it clear, for the record, that it would not offer a departure sentence as part of a negotiated plea, the State never *823 objected to the court’s imposition of a departure sentence. Rather, the prosecutor told the judge that if she “would like to mitigate, that’s on you, that’s not from the State.” Accordingly, we find that the issue was not preserved for appellate review, and affirm. See State v. Colbert, 968 So.2d 1043 (Fla. 5th DCA 2007) (holding that to successfully challenge a departure sentence on appeal the state must properly preserve the issue by objection during the sentencing hearing).

AFFIRMED.

PALMER, LAWSON, and JACOBUS, JJ., concur.

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PER CURIAM.

The State of Florida appeals the downward departure jail and probationary sentence imposed on Desmond L. Swilley, following his plea to a third degree felony grand theft charge. Based upon his extensive prior criminal record of nine prior felony convictions and even more prior misdemeanors, Swilley scored 34.35 months in prison as a minimum legal sentence on his criminal punishment score-sheet. Following an off-the-record discussion with the prosecutor and defense counsel, the trial court departed downward, explaining that a prison sentence seemed “unreasonable” given the nature of the crime. The trial judge also discussed the need for restitution, but never clearly identified this as a justification for the departure sentence. Although the State made it clear, for the record, that it would not offer a departure sentence as part of a negotiated plea, the State never *823 objected to the court’s imposition of a departure sentence. Rather, the prosecutor told the judge that if she “would like to mitigate, that’s on you, that’s not from the State.” Accordingly, we find that the issue was not preserved for appellate review, and affirm. See State v. Colbert, 968 So.2d 1043 (Fla. 5th DCA 2007) (holding that to successfully challenge a departure sentence on appeal the state must properly preserve the issue by objection during the sentencing hearing).

AFFIRMED.

PALMER, LAWSON, and JACOBUS, JJ., concur.

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Bluebook (online)

73 So. 3d 822, 2011 Fla. App. LEXIS 16732, 2011 WL 5108550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-swilley-fladistctapp-2011.

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