### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JOHN HENRY FOGARTY
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 13

- 3157

[ December 17, 2014 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Richard Oftedal , Judge; L.T. Case No. 2011CF010150AMB

.

Carey Haughwout, Public Defender, and Emily Ross

- Booker, Assistant Public Defender, West Palm Beach, and John Henry Fogarty, South Bay, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee , and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

E N B ANC

O N M OTION FOR R

EHEARING

W ARNER
, J.

We deny appellant’s motion for rehearing, withdraw our previous opinion

, a nd issue the following in its place.

Appellant

, John Fogarty

, pled guilty to DUI manslaughter and sought a downward departure sentence from his lowest permissible sentence of 124.5 months in prison. After a full hearing, the trial court denied the downward departure and sentenced him to eleven years i n prison. He appealed, and counsel filed a brief pursuant to Anders v. California , 386

U.S. 738 (1967), concluding that there were no arguable issues to raise. Fogarty filed his own brief contesting the denial of the downward departure, claiming that it was based upon “erroneous facts and incompetent evidence.” The state’s answer brief contended that the claim was not appealable

, citing to Jorquera v. State , 868 So. 2d 1250 (Fla. 4 th2

DCA 2004). We affirm, finding that no issues of arguable merit exi s t, but we issue this opinion for the limited purpose of receding from our decisions

in Jorquera and Marshall v. State , 978 So. 2d 279 (Fla. 4 th DCA 2008)

, where we declined review of trial court s’ discretionary decisions to deny downward departure sentences. We hold that such determinations are appealable under the process enunciated in Banks v. State

, 732 S o. 2d 1065 (Fla. 1999)

.

In Jorquera , this court held that section 924.06(1), Fl orida Statutes

, allowing appeals from illegal sentences, did not give the appellate courts jurisdiction to review a trial court decision to deny a downward departure. Jorquera , 868 So. 2d at 1253. We cited Patterson v. State , 796 So. 2d 572, 574 (Fla. 2d DCA 2001), review denied , 817 So. 2d 849 (Fla. 2002), which

reached the same conclusion. Our decision in Marshall dismissed an appeal of the denial of a downward departure sentence, citing to Jorquera

. Marshall , 978 So. 2d at 280.

However, in Barnhill v. State , 140 So. 3d 1055 (Fla. 2d DCA 2014) , the

S econd D istrict receded from Patterson after determining that subsequent decisions from the supreme court could not be reconciled with Patterson ’s holding. The court concluded that both case law and Florida Rule of Appellate Procedure 9.140 had expanded appeals t o both illegal and

unlawful sentences. Id. at 1059

- 60. Specifically, it pointed to Banks v.

State

, 732 S o. 2d 1065 (Fla. 1999)

, in which the supreme court outlined the procedure for both the trial court consideration of a departure sentence

and the stand ard of review on appeal. The supreme court said:

A trial court ’ s decision whether to depart from the guidelines is a two

- part process. First, the court must

determine whether it can depart, i.e., whether there is a valid legal ground and adequate factua l support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect of the court ’ s decision to de part is a mixed question of

law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling

.

* * * *

Second, where the step 1 requirements are met, the trial

court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the3 defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment

call within the sound discretion of the court and will be

sustained on review absent a n abuse of discretion. Discretion is abused only where no reasonable person would agree with the trial court ’ s decision

.

Id. at 1067

- 68 ( f

ootnotes omitted

, bolded emphasis supplied ). Thus, the

supreme court did allow for appellate review of both steps o f the procedure for downward departure, albeit using different standards of review. The first step is reviewable for legal error and competent substantial evidence. The second step as to whether to downward ly depart is reviewable for an

abuse of discreti on. B ut see Patrizi v. State , 31 So. 3d 229 , 231 (Fla. 1 st DCA 2010) (appellate court may review only instances of legal error in defining or applying trial court’s discretionary authority). For these reasons, we recede from Jorquera and Marshall

.

Here, t he trial court applied the two

- prong standard set forth in Banks

. In doing so, it determined that there was a ground for a downward departure, i.e.

, that it was an isolated incident and appellant showed remorse. Nevertheless, the trial court declined t o downwardly depart because of the level of appellant’s intoxication . The court also comment ed that driving while intoxicated is not an accident. In his pro se brief, appellant challenges the factual predicate for his blood alcohol level, but no objectio n was made that the state’s statements were in error, and appellant did not offer any evidence to contradict the blood alcohol level. Thus, the issue is not preserved. The trial court did not abuse its discretion in denying a downward departure. Additio nally , there are no other issues which could be advanced in good conscience on appellant’s

behalf.

Accordingly, we affirm the conviction and sentence.

D AMOORGIAN
, C.J., S TEVENSON
, G ROSS
, T AYLOR
, M AY , C IKLIN , G ERBER , L EVINE
, C ONNER , F ORST and K LINGENSMIT H
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.