DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JEFFERY GESKE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D22-729

January 12, 2024

BY ORDER OF THE COURT.

ON MOTION FOR WRITTEN OPINION

Appellant's motion for written opinion is granted. The opinion 

issued September 1, 2023, is withdrawn, and the attached opinion is 

substituted in its place. 

I HEREBY CERTIFY THE FOREGOING IS A 

TRUE COPY OF THE ORIGINAL COURT 

ORDER. 

MARY ELIZABETH KUENZEL, CLERK
DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JEFFERY GESKE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D22-729

January 12, 2024

Appeal from the Circuit Court for Sarasota County; Donna Padar, Judge.

Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., 

Sarasota, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin,

Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Jeffery Geske appeals his sentences imposed for forty counts of 

possession of child pornography (ten or more images), following the 

denial of his motion for a downward departure.1 We affirm for the 

reasons stated herein. 

1 Geske was also convicted and sentenced for one count of 

possession of a controlled substance. However, his argument on appeal 
2

Geske pleaded no contest to the charges and was adjudicated 

guilty. Prior to sentencing, he filed a motion for a downward departure. 

In the motion, he relied on section 921.0026(2)(d), Florida Statutes 

(2021), to argue that he required specialized treatment for a mental 

disorder that was unrelated to substance abuse or addiction.2 He also 

relied on section 921.0026(2)(j) to argue that the offense was committed 

in an unsophisticated manner and that it was an isolated incident for 

which he had shown remorse. After a hearing, the trial court denied 

Geske's motion and sentenced him to 180 months in prison for counts 

one to thirty and to 174.3 months in prison for counts thirty-one to forty, 

with some counts running concurrently and others running 

consecutively.

On appeal, Geske argues that fundamental error occurred as a 

result of several trial court errors. The State disputes this court's 

jurisdiction over this appeal. The State also contends that Geske failed 

to preserve his arguments for appeal.

JURISDICTION AND PRESERVATION

The State first asserts that we lack jurisdiction to hear this appeal 

because it involves a denial of a motion for downward departure. We 

reject this argument for the reasons expressed in Barnhill v. State, 140 

So. 3d 1055, 1060 (Fla. 2d DCA 2014).3 

addresses the denial of his motion for downward departure which 

focused on his sentences for the child pornography offenses. Thus we 

confine our opinion to the issue of the sentences imposed for those 

offenses.

2 Geske makes no argument related to this statutory ground for 

departure and thus we do not address it further.

3 The State points out that the First District Court of Appeal, in 

Wilson v. State, 306 So. 3d 1267, 1272-73 (Fla. 1st DCA 2020), review 

granted, SC20-1870, 2021 WL 1157838 (Fla. Mar. 26, 2021), certified 
3

We also reject the State's argument that Geske was required to 

preserve his arguments at the sentencing hearing or in a motion brought 

pursuant to Florida Rule of Criminal Procedure 3.800(b). Geske's 

arguments on appeal address the issues of failure to properly apply the 

two-part test for a downward departure, application of a general policy of 

not granting a downward departure, and reliance on improper sentencing 

factors. Those types of purported errors constitute due process 

violations resulting in fundamental error. See, e.g., Gage v. State, 147 

So. 3d 1020, 1022 (Fla. 2d DCA 2014) (involving consideration of 

impermissible sentencing factors); Price v. State, 278 So. 3d 697, 701 

(Fla. 4th DCA 2019) (same); Little v. State, 152 So. 3d 770, 771-72 (Fla. 

5th DCA 2014) (concluding that applying general policy on motion for 

downward departure results in fundamental error). Because such errors 

are errors in the sentencing process, rather than errors in the sentences 

themselves, a rule 3.800(b) motion is not required to preserve the issues; 

in fact, rule 3.800(b) is an improper mechanism for preserving those 

issues for appeal. See Hannum v. State, 13 So. 3d 132, 135 (Fla. 2d DCA 

2009) (explaining that trial court's error in consideration of improper 

factors during sentencing was an error in the sentencing process rather 

than an error in the sentencing order and thus rule 3.800(b) was not 

applicable); Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 2012) 

(explaining that a defendant cannot use a rule 3.800(b) motion to raise 

the issue of a trial court's reliance on improper factors during 

sentencing). Further, because each of those types of errors would 

constitute a due process violation resulting in fundamental error, Geske 

conflict with this court on this issue and that the proceeding in the 

Florida Supreme Court remains pending. However, we note that the 

State did not ask this court to certify conflict with Wilson.
4

was not required to preserve his arguments below. See Cromartie v. 

State, 70 So. 3d 559, 563 (Fla. 2011) ("[W]here there is no 

contemporaneous objection during a sentencing hearing and where the 

error does not qualify as a 'sentencing error' that can be raised in a rule 

3.800(b) motion, the error can still be considered and remedied on appeal 

if the error is fundamental." (citing Jackson v. State, 983 So. 2d 562, 574 

(Fla. 2008))). Thus we must proceed to address the merits of Geske's 

arguments.

ANALYSIS

I. The trial court made it clear that it was exercising its discretion 

not to impose a downward departure sentence, and any error 

in applying an incorrect burden of proof was harmless. 

Geske first argues that the trial court failed to properly apply 

the two-part test that is required when a trial court considers a 

motion for a downward departure. 

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 factual 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 depart 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 the 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 
5

decision to depart is a judgment call within the 

sound discretion of the court and will be sustained 

on review absent an abuse of discretion.

Barnhill, 140 So. 3d at 1060 (quoting Banks v. State, 732 So. 2d 1065, 

1067 (Fla. 1999)). Typically, a trial court's discretionary decision 

whether to grant a downward departure is reviewed for abuse of 

discretion, but where the issue involves a trial court's application of an 

incorrect standard in determining whether to exercise its discretion, a de 

novo standard of review applies. Id. at 1060-61. 

A "defendant bears the burden of presenting competent, 

substantial evidence to support the reason for a downward departure." 

State v. Lackey, 248 So. 3d 1222, 1224 (Fla. 2d DCA 2018). "The level of 

proof necessary to establish facts that support a departure from the 

lowest permissible sentence is a preponderance of the evidence." 

§ 921.002(1)(f), Fla. Stat. (2021). 

Geske contends that the trial court never completed step one, i.e., 

it did not make a clear determination about whether it could or could not

depart. And he asserts that a trial court cannot proceed to step two 

without first determining that a valid basis for departure has been 

proven. This court and others have reversed where a trial court's 

statements are unclear as to whether it was rejecting a defendant's 

factual basis or whether the defendant had established a factual basis 

but the trial court was exercising its discretion not to depart. See, e.g., 

Williams v. State, 286 So. 3d 892, 895, 898 (Fla. 2d DCA 2019) (reversing 

and remanding where there was uncertainty about whether trial court 

incorrectly determined it could not depart or whether it determined that 

it could depart but then exercised its discretion not to depart); Camacho 

v. State, 164 So. 3d 45, 48 (Fla. 2d DCA 2015) (vacating sentence in part 

because record was unclear whether trial court's ruling was based on 
6

rejection of some of the defendant's expert's opinions or whether the trial 

court made a legal error by concluding that no legal basis for a departure 

existed where trial court never stated that defendant failed to meet his 

evidentiary burden nor expressly indicated it was rejecting any portion of 

the expert's testimony); Kovalsky v. State, 220 So. 3d 1192, 1195-96 

(Fla. 4th DCA 2017) (reversing and remanding for resentencing where it 

was unclear whether the trial court determined that it should not depart 

(step two) "as opposed to determining that it was 'confined' by the step 

one determination and thus downward departure was not an option").

Geske contends that in this case, the trial court expressed doubt 

about whether a valid basis had been proven and yet still ruled that a 

departure sentence was not appropriate in this case. Geske argues that 

this proves that the trial court did not properly apply the two-part test. 

Our reading of the transcript reflects that the trial court made 

several findings relating to Geske's evidence. In evaluating the statutory 

ground of the offense being isolated and unsophisticated and where the 

defendant has shown remorse, the trial court opined that it was "difficult 

to find that burden was met by the facts available to the defense." After 

addressing several aspects of Geske's expert witness's testimony, the trial 

court ultimately concluded that "I'm not going to find it appropriate, even 

if the - - every factor was met. . . . I do not find it appropriate to grant 

you a downward departure under the facts of this case." The State then 

interjected that "there has to be a firm pronouncement that you could 

depart, but you're not." The trial court responded, "ok." The trial court 

then stated that it would make its ruling clear and stated the following: 

I question whether or not the burden has been met for 

both the proposed downward departure[s] cited by the 

Defense. I do believe the State's arguments against the 

downward departure [were] persuasive, and the Court adopts 
7

them. Even if a threshold was met beyond a reasonable 

doubt, or by clear and convincing evidence, or you know, 

beyond any reasonable doubt whatsoever, the Court does not 

find it appropriate under the circumstances to grant a 

downward departure in this case. 

While this statement is not an explicit determination by the trial court 

that it could depart, it is clear when reading the trial court's statements 

as a whole that the trial court was not going to depart. That is, the trial 

court had determined that even if Geske had established a valid legal 

basis to depart and supported it with factual evidence, the trial court did 

not believe it should depart, step two in the two-part test. This is not a 

situation where the record is unclear whether the trial court would have 

imposed the same sentence if it had understood that it had the authority 

to depart. Cf. Camacho, 164 So. 3d at 48. Rather, it is very clear that 

despite the trial court's doubts about whether Geske had met his 

evidentiary burden (step one), the trial court was not going to exercise its 

discretion to impose a departure sentence (step two). 

Geske next points to the trial court's reference to the threshold for 

proving a ground for a downward departure by a reasonable doubt or by 

clear and convincing evidence. Geske argues that that reference proves 

that the trial court held him to a higher burden of proof than the 

preponderance of the evidence standard set forth in section 921.002(1)(f). 

We agree that it appears that the trial court applied an incorrect burden 

of proof. However, we also conclude that this error does not rise to the 

level of fundamental error. This is due to the trial court's explanation 

that regardless of whether Geske met his burden of proof, the trial court 

was not going to exercise its discretion to depart under step two of the 

two-part test. Thus any error in applying step one of the two-part test or 

in improperly conflating steps one and two was harmless. See Rodriguez 

v. State, 299 So. 3d 555, 557 (Fla. 5th DCA 2020) (holding that even if 
8

the trial court erred in concluding that a second ground for a downward 

departure was not established or even if it had erroneously conflated 

steps one and two, any error was harmless based on the trial court's 

conclusion that even if the first ground for a downward departure was 

established, the trial court was not going to depart). 

We conclude that any error in applying an incorrect burden of proof 

for step one was harmless due to the trial court's clear ruling that 

regardless of the evidence that Geske had provided, the trial court was 

not going to depart (step two). Accordingly, Geske is not entitled to a 

resentencing based on a misapplication of the two-part test. 

II. The trial court did not fundamentally err by considering 

whether Geske showed remorse or accepted responsibility and 

whether Geske had been truthful during his evaluation with 

his mental health expert. 

Geske next argues that the major theme at his sentencing was 

whether he showed remorse. He points to various comments made by 

the State and the trial court, and he argues that the trial court 

improperly considered Geske's alleged belief that those who viewed child 

pornography did not cause harm to the victims, his failure to 

acknowledge that he was a pedophile (even though he was not diagnosed 

as such), his failure to attempt to "right the wrongs," and his failure to 

obtain treatment while in jail. Geske also argues that the trial court 

committed a due process violation by considering Geske's truthfulness as 

reflected by the trial court's comment that Geske was "not completely 

forthright" when he was evaluated by his expert witness.

We find no merit to these arguments. Section 921.0026(2)(j) 

specifically permits a trial court to grant a downward departure where 

the crime was an isolated incident and unsophisticated and where the 

defendant has shown remorse. All three elements of that statutory 
9

ground must be established in order to be entitled to a downward 

departure on that basis. State v. Guerra, 328 So. 3d 1002, 1005 (Fla. 

4th DCA 2021). Case law also provides that "consideration of remorse is 

appropriate if it occurs during a court's consideration of whether to 

mitigate a sentence." Bellamy v. State, 199 So. 3d 480, 483 (Fla. 4th 

DCA 2016); see also Green v. State, 84 So. 3d 1169, 1171 n.3 (Fla. 3d 

DCA 2012) (noting that courts can consider whether a defendant has 

shown remorse or accepted responsibility where the defendant seeks a 

reduction, mitigation, or downward departure of his sentence); Johnson 

v. State, 948 So. 2d 1014, 1017 n.2 (Fla. 3d DCA 2007) (noting that 

section 921.0026(2)(j) permits consideration of lack of remorse). 

This is not a case where the trial court equated Geske's exercise of 

his constitutional rights with a lack of remorse. Cf. Bici v. State, 292 So. 

3d 1248, 1250 (Fla. 5th DCA 2020). Nor is there any evidence that the 

trial court denied the motion for downward departure because Geske 

entered a no contest plea instead of a guilty plea. Rather, it is evident 

that in determining whether Geske was entitled to a downward departure 

under section 921.0026(2)(j), the trial court properly considered whether 

Geske had shown remorse or accepted responsibility, a necessary 

requirement for that statutory ground. 

Turning to the issue of whether the trial court erroneously 

considered Geske's truthfulness, we conclude that the record does not 

support that argument. The comment was made during the trial court's 

explanation for why it did not give much weight to Geske's expert's 

testimony: because the expert himself did not believe Geske had been 

completely forthright during his evaluation. Thus the trial court's 

comment reflected the trial court's weighing of the evidence and the 

credibility of the witness. The trial court did not fundamentally err in 
10

considering whether Geske had shown remorse or accepted responsibility 

for purposes of determining whether he was entitled to a downward 

departure pursuant to section 921.0026(2)(j). Nor did the trial court 

erroneously consider Geske's truthfulness before denying his motion. 

Consequently, no resentencing is required on this basis. 

III. The trial court did not consider inadmissible and unproven 

facts developed during plea negotiations, and thus no 

fundamental error occurred.

Geske argues that the trial court improperly considered 

inadmissible and unproven facts that were developed during plea 

negotiations. In support of this argument, he cites section 90.410, 

Florida Statutes (2019), for the proposition that any statements made in 

connection with a plea are inadmissible. And he specifically points to a 

statement made by the State about Geske's purported motive for entering 

a plea. 

However, we find no indication in the transcript that the trial court 

considered what occurred during plea negotiations as a factor when 

fashioning Geske's sentence. To the contrary, the transcript reflects that 

the trial court specifically stated that regardless of the trial judge's 

personal feelings "and how the State charges things, and how 

negotiations go, and what defense attorneys recommend to their clients 

while awaiting sentencing, I can't take any of that into account at this 

point." Absent evidence to suggest that the trial court considered 

statements made in connection with the entry of Geske's plea, there is no 

fundamental error. Thus Geske's argument on this point is without 

merit.

IV. There is no indication that the trial court considered uncharged 

and unsubstantiated alleged crimes and bad acts in denying 

Geske's motion and rendering his sentences, but even if it had, 

no fundamental error occurred.
11

Geske next contends that the trial court improperly considered 

other uncharged acts of possession of child pornography. He contends 

that the State presented evidence of 189 images of child pornography 

(including those that formed the basis for the forty counts that Geske 

pleaded to plus an additional 149 images) and that the State informed 

the trial court that at one point, there had been 219 potential counts of 

possession of child pornography. He argues that this led to the trial 

court's improper consideration of the additional 149 images for which he 

was never charged and for which no proof was presented. He also cites 

testimony from a State witness that there were more child pornography 

images located on a computer that was never found. He asserts that 

while the State, over a defense objection, asked the trial court to consider 

computer search terms not connected to the possession of any child 

pornography, there were no dates developed to establish when those 

searches were conducted nor was there any proof that it was Geske who 

conducted them. 

The State, in an attempt to establish that the trial court did not 

improperly consider the evidence related to the additional 149 images 

when ruling on Geske's motion prior to sentencing, argues that sections 

775.0847(2) and 827.071(5)(a), Florida Statutes (2019), permit the State 

to charge a defendant with one count of possession of child pornography 

for the defendant's possession of multiple images rather than just one 

image and, as a result, that each count is reclassified as a higher offense. 

The State contends that the trial court was permitted to consider the 

evidence of the other 149 images here because each of the 40 counts 

involved multiple images. 

Notably, in his response, Geske agrees that each of the forty counts 

could be reclassified pursuant to section 775.0847(2). But he disagrees 
12

that the charging document reflects that each of the forty counts involved 

more than one image. Instead, he maintains that he was only charged 

with possession of forty single images. Thus he argues that the State's 

evidence relating to the other 149 images was uncharged collateral crime 

evidence which the trial court should not have considered when ruling 

on his motion and fashioning his sentence. 

Both Geske and the State appear to interpret the meaning of the 

reclassification provision in section 775.0847(2) differently, resulting in a 

dispute over how many images formed the basis for each of the forty 

counts. But we need not resolve the statutory interpretation issue 

because we conclude that it is not apparent that the trial court 

considered the additional images or search terms, and even if it did, 

there was no fundamental error because the evidence and arguments 

were presented for the purpose of establishing why Geske was not 

entitled to a downward departure pursuant to section 921.0026(2)(j).

In fashioning a sentence, a trial court may not consider incidents of 

misconduct that occur after the charged offense or unsubstantiated 

allegations of misconduct; nor may a trial court rely on speculation that 

the defendant may commit crimes in the future. See, e.g., Wyrich v. 

State, 370 So. 3d 1000 (Fla. 2d DCA 2023) (involving uncharged 

misconduct); Tharp v. State, 273 So. 3d 269, 271 (Fla. 2d DCA 2019) 

(involving misconduct that occurred after the charged offenses); 

Lundquist v. State, 254 So. 3d 1159, 1160 (Fla. 2d DCA 2018) (same); 

Berben v. State, 268 So. 3d 235, 238 (Fla. 5th DCA 2019) (involving 

uncharged crimes); Shelko v. State, 268 So. 3d 1003, 1005 (Fla. 5th DCA 

2019) (involving unsubstantiated allegations of misconduct).4 Where a 

4 Geske relies heavily on both Berben and Baldino v. State, 225 So. 

3d 257, 262 (Fla. 4th DCA 2017), arguing that the State improperly 
13

trial court does so, a due process violation occurs that results in 

fundamental error. See Wyrich, 370 So. 3d at 1004; Tharp, 273 So. 3d at 

271; Lundquist, 254 So. 3d at 1160. It is the State which bears the 

burden to prove that from the record as a whole, the trial court did not 

consider impermissible factors during sentencing. See Wyrich, 370 So. 

3d at 1004; Lundquist, 254 So. 3d at 1160. 

Notably, this court and at least one other Florida appellate court 

have recognized that where a trial court hears information related to 

uncharged misconduct during a sentencing hearing, a reversal is not 

automatically required; this is because trial courts are expected to "act 

within the bounds of the law and neither consider nor act upon that 

improper information." Wyrich, 370 So. 3d at 1004; see also Barlow v. 

State, 238 So. 3d 416, 417 (Fla. 1st DCA 2018) (citing Harvard v. State, 

414 So. 2d 1032, 1034 (Fla. 1982), for the proposition that trial courts 

are regularly presented with information that may not be properly 

considered while also noting that the judicial system relies upon the 

ability of trial courts to disregard such information and to abide by the 

requirements of the law when sentencing a defendant). And here, there 

is no indication that the trial court violated that principle. 

First, we note that when the State's witness referenced the 189 

total images, defense counsel made no objection. Second, the State did 

not continue to focus on the additional images; instead, the State 

proceeded to ask the witness whether there was an indication that Geske 

encouraged the trial court to consider the additional uncharged images. 

However, neither of those cases involved a motion for downward 

departure pursuant to section 921.0026(2)(j) based on the argument that 

the crimes were isolated and unsophisticated and that the defendant 

showed remorse. Cf. Berben, 268 So. 3d at 237-38; Baldino, 225 So. 3d 

at 262-63. Thus neither case controls the outcome in this case.
14

had created the images or videos himself and what attempts had been 

made to modify or delete the images. That line of questioning also 

addressed whether the deletions that were made were simple or 

sophisticated types of operations. The witness opined that it was clear 

that based on the time frame of the attempted and completed deletions, 

"it wasn't an isolated incident" but was instead "an ongoing, somewhat 

sophisticated endeavor." 

On cross-examination, defense counsel asked questions about 

whether the witness could tell whether the images found had been 

viewed and by whom and whether the witness could tell when things had 

been deleted from the computers. 

On redirect, the State asked the witness about whether files 

containing child pornography referenced Geske's name and what the 

internet search history indicated. It was then that defense counsel 

objected, but notably the objection was that the testimony about the 

search terms was irrelevant, not that it was improper uncharged crimes 

evidence. Over objection, the witness was permitted to answer about the 

search terms which were used.

In its closing argument, the State noted to the trial court that the 

quantity of contraband—here the 189 images—was not an appropriate 

factor for the trial court to consider. The State's primary argument was 

that the crime was not unsophisticated because there was evidence that 

Geske took great efforts to delete images, using certain computer 

applications more than once a day to try and do so and because he 

downloaded a movie creation application to create his own video from the 

images. The State also argued that the crimes were not isolated or 

unsophisticated because they took place over an extended period of time. 

The reference to the 219 original counts arose during the State's 
15

argument that Geske only pleaded no contest so that the number of 

counts would be reduced, rather than his accepting responsibility. 

During defense counsel's closing argument, he asserted that the 

crimes were unsophisticated because uploading images "is not a 

sophisticated endeavor." Defense counsel argued that the crimes were 

isolated in nature because following the upload of the images, there was 

nothing proving that Geske had been continuously viewing them. 

Defense counsel also argued that the State was incorrect that Geske's 

plea was only entered in order to reduce the number of counts he faced; 

defense counsel contended that Geske accepted responsibility by 

entering a plea to the forty counts because "[t]here was no question [that] 

[h]e possessed the child pornography." Notably, defense counsel himself 

mentioned the 189 total images more than once during closing argument 

but never contended that the trial court should not consider all of them 

because Geske was only charged with forty counts. Defense counsel also 

never argued that the State's witness's testimony about the additional 

149 images or the search terms used was unsubstantiated. 

The trial court provided a lengthy oral explanation for its ruling 

denying Geske's motion prior to imposing the sentences. When 

addressing whether the crimes were isolated and unsophisticated and 

whether Geske had shown remorse, the trial court stated that it found "it 

difficult to find that the burden has been met by the facts available to the 

Defense." The court noted that this case did not involve a single event 

followed by Geske's "attempts to make it right ever since through 

remorse." The trial court noted that it "probably couldn't put together a 

video like the one [Geske] put together" and that it [the trial court] could 

not have figured out how to run all the computer applications that Geske 

used to try and delete the images. The trial court also stated it could not 
16

have figured out that the hard drives should be taken out and put in a 

safe. The trial court concluded its explanation by stating it was "not 

going to find it appropriate, even if . . . every factor was met . . . to grant 

[the] downward departure under the facts of this case." 

As the court did in Barlow, we conclude that "there is no indication 

that the trial court based its sentence" on additional uncharged images. 

238 So. 3d at 417. It is clear that the primary focus of the State's 

evidence and its argument to the trial court centered on Geske's efforts 

to alter images and to delete them. It is likewise clear that the trial court 

focused on those same issues. 

Yet, even if the trial court had based its denial of Geske's motion 

and Geske's sentences on the additional 149 images, it would not have 

been fundamental error. The testimony elicited by the State and the 

State's arguments were presented to establish that the crimes were not 

isolated or unsophisticated and that Geske had failed to take 

responsibility for the crimes. That testimony and argument was directly 

relevant to whether Geske was entitled to a downward departure 

pursuant to section 921.0026(2)(j). Similarly, the State's witness's 

testimony about Geske using search terms was not improper. Like the 

evidence and argument relating to the additional 149 images of child 

pornography, the testimony about the search terms was being used to 

rebut Geske's contention that his crimes were isolated and 

unsophisticated. Accordingly, Geske has failed to establish that a due 

process violation occurred, and he is not entitled to resentencing based 

on this argument.

V. The trial court did not consider crimes committed by others nor 

did it apply a blanket policy of denying requests for a 

downward departure in child pornography cases or in cases 
17

where a defendant fails to show remorse, and therefore, it did 

not fundamentally err.

On this issue, Geske contends that the trial court improperly 

considered victim impact statements from some of the children (and their 

parents) who were the subject of some of the images that Geske 

possessed. He argues that the statements do not relate to him 

personally because the statements address the initial sexual abuse and 

the persons who committed such crimes as well as the production of the 

materials. He notes that he was only charged with possession of child 

pornography, not the creation of it. Thus he argues that by considering 

the statements, the trial court improperly held him responsible for the 

sexual abuse of the children, the production or distribution of the 

materials, or the conduct of future viewers. 

Geske also argues that the trial court's comments here are similar 

to those made in Berben, Barnhill, and Goldstein v. State, 154 So. 3d 

469, 473-75 (Fla. 2d DCA 2015). He argues that it is clear that the trial 

court was applying a blanket policy of not permitting a downward 

departure in child pornography cases as a whole or where a defendant 

has failed to show remorse. He argues that the trial court's application 

of such policies constitutes a due process violation resulting in 

fundamental error. 

We first note that because child pornography images are frequently 

in circulation in many locations, unsworn victim impact statements are 

routinely used in child pornography cases. See, e.g., Dickie v. State, 216 

So. 3d 35, 36 (Fla. 2d DCA 2017) (involving the State's introduction of 

unsworn victim impact statements collected through the FBI's child 

victim ID program which are used across different proceedings because 

of the way child pornography traffickers organize their pornography and 

because the same images remain in circulation on the internet long after 
18

they are created). Such statements are a permissible type of information 

for trial courts to consider when fashioning a defendant's sentence. See 

id. at 37-38. This is because trial courts have wide discretion in 

sentencing and may consider all information that "reasonably might bear 

on the proper sentence for a particular defendant, given the crime 

committed." Id. at 37 (quoting Howard v. State, 820 So. 2d 337, 340 

(Fla. 4th DCA 2002)). Consequently, the trial court did not 

fundamentally err by reading and considering the victim impact 

statements when sentencing Geske. 

We disagree with Geske's contention that the trial court's 

comments in this case are equivalent to those made in Berben, Barnhill, 

and Goldstein.

5 Nowhere within the transcript does the trial court equate 

5 In each of these cases, the trial courts made comments reflecting 

that the defendants were not being sentenced based on the specific facts 

of their own cases, but based on the type of case for which they were 

being sentenced. See, e.g., Goldstein, 154 So. 3d at 472-73 (concluding 

that trial court improperly considered evidence from other cases and 

lumped defendant with all other similarly charged defendants where trial 

court talked about prior child pornography cases and common traits 

among defendants, about how the trial court knew from its experience in 

sitting on child pornography cases that similarly situated defendants 

were sexually aroused by children, about not having enough data to 

accurately predict whether child pornographers would go on to touch a 

child, and about the trial court's refusal to take the risk that Goldstein or 

others with a proclivity for child pornography would actually sexually 

abuse a child in the future); Barnhill, 140 So. 3d at 1059 (concluding 

that trial court improperly considered evidence from other hearings and 

lumped defendant with all other similarly charged defendants where trial 

court talked about epidemic of child pornography cases, about 

percentage of child pornographers who have hands-on contact with 

children, about pedophiles generally, and about there being "no magic 

answer as to whether [Barnhill was] going to reoffend"); Berben, 268 So. 

3d at 237 (concluding that trial court relied on impermissible sentencing 

factors in part where trial court stated that there was "little difference in 

culpability between those who actually sexually abuse and exploit 
19

Geske's possession of child pornography with the actual production or 

distribution of it, nor does the trial court indicate that its sentencing was 

based on whether other people currently possess or could in the future 

possess the images. Likewise, we do not construe the trial court's 

comments to mean that the trial court lumped Geske in with all other 

similarly charged defendants. It is clear from our reading of the 

transcript that the trial court carefully considered the specific facts of 

Geske's case, evidenced by the trial court's references to the evidence 

presented in this case. The fact that the trial court read the victim 

impact statements and noted the continuing nature of the crimes 

(because child pornography images remain in circulation) does not 

suggest otherwise. See Barlow, 238 So. 3d at 417-18 (rejecting 

appellant's argument that trial court committed fundamental error by 

noting the general societal harm that is caused by child pornography 

where the trial court did not articulate any general policy applicable to all 

child pornography cases). 

In addressing the remorse aspect of Geske's motion, the trial court 

explained that it analyzes whether a defendant "wishes" for a lower 

sentence when entering a plea or whether a defendant has "a plan to 

make what you have done wrong in society right to better yourself and to 

better the people that you've harmed." The trial court then addressed 

the facts of Geske's case, noting various parts of Geske's own testimony 

as well as the testimony of Geske's expert witness. The court explained 

why it found Geske's expert's testimony to be inconsistent (in part 

because Geske had not been forthright in his evaluation) as well as 

based on a test that was not peer-reviewed and which was no longer 

children and those who encourage and promote conduct by downloading 

and sharing videos of such").
20

used by the expert. The trial court explained that it was concerned 

because Geske's expert agreed that Geske did not seem to think he had 

done anything wrong. Ultimately, the trial court concluded that this case 

did not involve a "single event" where Geske had been making attempts 

to make it right because he was remorseful. These statements do not 

reflect that the trial court applied a blanket policy of refusing to grant a 

downward departure where a defendant fails to show remorse. Rather, 

they reflect that the trial court considered the evidence presented to 

reach the conclusion that Geske himself had not shown remorse, a 

necessary factor for a downward departure pursuant to section 

921.0026(2)(j). 

CONCLUSION

We hold that Geske failed to establish that fundamental error 

occurred in the trial court's denial of his motion for downward departure 

and the imposition of his sentences. Accordingly, we affirm. 

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur. 

Opinion subject to revision prior to official publication.