DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

VERNAL MURRAY,

Appellee.

Nos. 4D13-4384 and 4D13-4385

[April 8, 2015]

Appeals from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael A. Robinson, Judge; L.T. Case Nos. 12-18582 

CF10A and 13-9874 CF10A.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. 

Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant 

Public Defender, West Palm Beach, for appellee.

LEVINE, J.

The state appeals a sentencing order in two cases, claiming it is illegal. 

We find the sentence imposed in both cases is illegal and as such we 

reverse and remand for resentencing.

1

The state charged appellee with grand theft and felony petit theft in two 

separate cases. Appellee entered an open no contest plea in both cases. 

The criminal punishment scoresheet in both cases reflected that the lowest 

permissible sentence was 32.1 months in prison. 

During the plea hearing, the state told the court that it had offered 

appellee 42.8 months. Defense counsel requested a sentence of a year and 

a day. The court told appellee that he faced a maximum of ten years in 

prison, consisting of five years for each charge. As to the potential 

sentence, the court stated that it “may do a year and a day” or it “may do 

1 Because these appeals were consolidated for briefing and panel purposes, we 

consolidate them for opinion purposes as well. 
2

18 months or whatever, but it’s going to be probably lower than what the 

State is offering.” In response, the state noted that appellee scored 32.1 

months at the bottom of the guidelines. The state further advised the 

court, “We are recommending the middle of 42.8 months, and we are 

objecting to the Court going below the bottom.” (emphasis added). The 

court responded, “Absolutely.” The court ultimately sentenced appellant 

to concurrent terms of eighteen months in prison and designated him a 

habitual offender. From this sentence, the state appeals. 

The state argues that the trial court erred in entering downward 

departure sentences, since there was no basis for the departure stated in 

the record and the trial court failed to timely submit a written basis for 

departure. Thus, nothing in the record supports any valid basis for the 

trial court’s downward departure. Appellee’s only argument on appeal is 

that the state did not preserve the issue because it did not object when the 

sentence was imposed and did not specifically state why the downward 

departure sentence was improper. Appellee does not make any attempt to 

argue that his sentence is otherwise valid. 

In order to preserve an issue for appeal, the issue must be timely raised 

and ruled on by the trial court and it must be sufficiently precise to apprise 

the trial court of the relief sought and grounds for the objection. § 

924.051(1)(b), Fla. Stat. (2013). See also Harrell v. State, 894 So. 2d 935, 

940 (Fla. 2005); State v. Clay, 780 So. 2d 269, 270 (Fla. 5th DCA 2001).

However, a general objection will suffice where the basis of the objection 

is clear from the context or where it is clear that the trial court was aware 

of the legal errors associated with its ruling and therefore had the 

opportunity to correct it. State v. Colbert, 968 So. 2d 1043, 1045 (Fla. 5th 

DCA 2007). 

In the present case, the state’s objection preserved the sentencing issue 

because the objection was sufficiently contemporaneous and sufficiently 

specific to apprise the court of the alleged error. Under the circumstances 

of this case, an additional objection after the court pronounced its 

sentence was not necessary to preserve the issue. See State v. Jordan, 867 

So. 2d 635 (Fla. 5th DCA 2004). In Jordan, during the sentencing hearing, 

the state told the court that “the State would object to the court’s 

imposition of the downward departure sentence. The State doesn’t feel the 

prongs have been met by the defense.” Id. at 636. The court then 

sentenced the defendant to a downward departure sentence instead of the 

lowest possible sentence. The Fifth District found the objection sufficient 

to preserve the issue for appeal, because the record did not indicate that 

the court or defense counsel failed to understand the grounds for the 

objection. 
3

Similarly, in State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000), the 

court reached an agreement with the defendant that he would be 

sentenced to community control and probation. The state pointed out that 

the guidelines scoresheet called for a minimum prison sentence of 19.2 

months, and objected to the proposed sentence. The trial court accepted 

the pleas and imposed a sentence of community control and probation. 

The Second District found the sentencing issue preserved for appeal, 

rejecting the defendant’s argument that the state’s objection was not 

sufficiently specific. See also State v. Cherry, 801 So. 2d 278 (Fla. 4th DCA 

2001) (finding that prosecutor’s statement to court, prior to imposition of 

sentence, informed court of statutory requirement that sentence was

required to be consecutive to other sentences, and preserved for appellate 

review state’s objection to imposition of concurrent sentence). 

As this issue is preserved, reversal is required because the downward 

departure was not authorized. Under the Criminal Punishment Code, 

appellee was required to be sentenced to a minimum of 32.1 months in 

prison. Instead, the trial court sentenced appellee to a term of eighteen 

months in prison, without articulating and justifying any reasons for the 

downward departure. 

“[W]hether there is a valid legal ground [for departure] and adequate 

factual support for that ground . . . 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.” Banks v. State, 732 

So. 2d 1065, 1067 (Fla. 1999). A downward departure sentence is 

prohibited unless there are mitigating circumstances or factors present 

which reasonably justify a departure. § 921.00265(1), Fla. Stat. (2013).

“Departures below the lowest permissible sentence established by the code 

must be articulated in writing by the trial court judge and made only when 

circumstances or factors reasonably justify the mitigation of the sentence.” 

§ 921.002(1)(f), Fla. Stat. (2013); see also § 921.002(3), Fla. Stat. (2013) 

(“Any sentence imposed below the lowest permissible sentence must be 

explained in writing by the trial court judge.”).

In the present case, appellee never filed a motion for downward 

departure; rather, he simply requested that the court impose a sentence 

of a year and a day. In imposing the sentence, the trial court did not state 

it was departing, did not orally articulate reasons for departing, and did 

not enter a written order memorializing the reasons for departure. The 

trial court did not articulate or delineate any of the mitigating factors 

relevant to a downward departure. “In the absence of either written or oral 

findings . . . a downward departure sentence is improper.” State v. Hall, 
4

981 So. 2d 511, 513 (Fla. 2d DCA 2008). Accordingly, we reverse and 

remand for resentencing within the guidelines.

Reversed and remanded with instructions.

GERBER and FORST, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.