MORGAN
v.
STATE OF FLORIDA
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A trial court commits reversible error when it erroneously believes it lacks discretion to impose a downward departure sentence, even when the defendant presents competent substantial evidence supporting grounds for departure under Florida law. The trial court must apply the two-step Banks test: first determining whether valid legal grounds and adequate factual support exist for departure, and second exercising discretion to determine whether departure is appropriate given the totality of circumstances.
[1] A trial court commits reversible error when it erroneously believes it lacks discretion to impose a downward departure sentence, even if the court would have denied depar…
[2] The two-step Banks test for downward departures requires the trial court first to determine whether valid legal grounds and adequate factual support exist for departure,…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The only way around the bottom of the guidelines is to make a determination that [Mr. Morgan] qualifies for a downward departure under [section] 921.0026. And what's been argued before the [c]ourt today is a downward departure for youthful offender.”
This statement by the trial court demonstrates its erroneous belief that only a youthful offender departure had been argued, when the record showed Morgan had presented evidence for other grounds of departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMorgan pleaded no contest to forty counts of possession of child pornography and one count of transmission of child pornography. At a two-day evidenti…
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DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
WINSTON MORGAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2024-0125
December 31, 2025
Appeal from the Circuit Court for Sarasota County; Dana Moss, Judge.
Blair Allen, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Laura Dempsey, Assistant Attorney General, Tampa, for Appellee.
SMITH, Judge.
Winston Morgan appeals his sentences1 rendered after he pleaded no contest to forty counts of possession of child pornography and one
The trial court employs a two-step process when ruling on a motion for downward departure: 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 (step1). 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. Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight. Second, where the step1 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 (step2), 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 an abuse of discretion. Discretion is abused only where no reasonable person would agree with the trial court's decision. Banks v. State, 732 So. 2d 1065, 1067-68 (Fla. 1999) (footnotes omitted). In this case Mr. Morgan argued for a youthful offender sentence under section 958.04, Florida Statutes (2021). He also sought a downward departure sentence based on section 921.0026(2)(d), (i), and (j), Florida Statutes (2021), and the parties discussed section 921.0026(2)(c) at the evidentiary hearing. Over the course of two days,
2 We note that the list of mitigating factors contained in section 921.0026(2) is not an exhaustive list of "circumstances or factors that [could] reasonably justify [a] downward departure." § 921.0026(1); see also Coto v. State, 366 So. 3d 1, 3 (Fla. 4th DCA 2023) ("[T]he trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited." (quoting State v. Simmons, 80 So. 3d 1089, 1092 (Fla. 4th DCA 2012))).
MORRIS and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- Barnhill v. State, 140 So. 3d 1055 (Fla. 2d DCA 2014)
- Kezal v. State, 42 So. 3d 252 (Fla. 2d DCA 2010)
- State v. Simmons, 80 So. 3d 1089 (Fla. 4th DCA 2012)
- Shely Ocean v. State, 366 So. 3d 1 (Fla. 4th DCA 2024)
- Soto v. State, 377 So. 3d 1232 (Fla. 2d DCA 2024)