State of Florida v. Yolanda Denise Harvey

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-1606 _____________________________

STATE OF FLORIDA,

Appellant,

v.

YOLANDA DENISE HARVEY,

Appellee. _____________________________

On appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge.

June 28, 2019

PER CURIAM.

The State appeals the trial court’s imposition of a downward- departure sentence for Appellee’s violation of community control, which was her fourth violation of supervision following an original sentence of probation. Although the trial court erred in failing to make oral or written findings supporting the downward departure as required by section 921.00265(2), Florida Statutes (2017), we are constrained to affirm because the error was not preserved—the State did not object. “The State must call the court’s attention to the need for downward departure reasons with a proper objection.” State v. Green, 12 So. 3d 796, 797 (Fla. 3d DCA 2009); see also State v. Colbert, 968 So. 2d 1043, 1045 (Fla. 5th DCA 2007) (finding general objection insufficient); State v. Dort, 929 So. 2d 1190, 1191 (Fla. 4th DCA 2006) (finding no

preservation, and affirming, where State did not object to downward departure sentence); State v. Jackson, 789 So. 2d 512, 513 (Fla. 1st DCA 2001) (affirming for lack of preservation although trial court failed to give oral or written grounds for downward departure).

AFFIRMED.

ROWE, BILBREY, and KELSEY, JJ., concur.

_____________________________

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

Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee; Yaritza Flores-Collazo, Assistant State Attorney, Office of the State Attorney, Pensacola, for Appellant.

Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.