State of Florida v. Darel W. Dougherty

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-1235 _____________________________

STATE OF FLORIDA,

Appellant,

v.

DAREL W. DOUGHERTY,

Appellee. _____________________________

On appeal from the Circuit Court for Leon County. Robert R. Wheeler, Judge.

February 28, 2019

PER CURIAM.

The State appeals the imposition of a downward departure sentence after Appellee was convicted of 137 counts naming the following offenses: aggravated white-collar crime; grand theft (over $100,000); organized scheme to defraud; criminal use of personal identification information ($50,000 or more); criminal use of personal identification information; and 132 counts of uttering a forged instrument. Because the trial court did not provide any valid legal reason for departure that was supported by competent, substantial record evidence, we reverse and remand for resentencing. See State v. Adkison, 56 So. 3d 880 (Fla. 1st DCA 2011); Demoss v. State, 843 So. 2d 309, 311 (Fla. 1st DCA 2003) (citing Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999)).

REVERSED and REMANDED for further proceedings.

B.L. THOMAS, C.J., and JAY, J., concur; BILBREY, J., concurs with opinion.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

BILBREY, J., concurring.

I fully concur in the majority’s holding that the downward departure sentence was not supported by competent, substantial evidence and must therefore be reversed and remanded for resentencing. I write separately to note that, so long as supported by the Criminal Punishment Code, nothing “precludes the imposition of a downward departure sentence on resentencing following remand.” Jackson v. State, 64 So. 3d 90, 93 (Fla. 2011). To the extent that our previous cases hold otherwise, they have been overruled by Jackson.

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Ashley B. Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.

Joseph C. Bodiford and Gannon M. Coens of Bodiford Law, P.A., Tallahassee, for Appellee.