Morgan v. State of Florida

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
1 Mr. Morgan does not seek appellate review of his convictions, as
such, his convictions are affirmed, and our review is limited to his
sentences.

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count of transmission of child pornography by electronic device. Mr.
Morgan contends the trial court erred when it denied his motion for
downward departure. We agree.
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
(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.
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 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 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,

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Mr. Morgan put forth unrebutted evidence at the evidentiary hearing
related to his autism diagnosis—specifically the social deficits and the
compulsive, repetitive, and obsessive features that are inherent in that
diagnosis.
At the conclusion of the hearing, the trial court stated: "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." Ultimately, the trial court
ruled: "I don't think it's appropriate for me to sentence [Mr. Morgan] as a
youthful offender. Which leaves me with no alternative but to sentence
him on Counts I through XLIV to 536.550 months." (Emphasis added.)
This was the bottom of the guidelines sentence.
However, contrary to the trial court's statement that the only
ground argued at the hearing was for a downward departure as a
youthful offender, Mr. Morgan did in fact put on unrebutted evidence to
support his argument that "there are circumstances or factors that
reasonably justify [a] downward departure" under section 921.0026(1)—
specifically related to his autism diagnosis.2 Based on the trial court's
misconstruction of the record, it erroneously found that it had "no
alternative" but to sentence Mr. Morgan according to his criminal
punishment code scoresheet. However, because another ground for
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))).

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departure had been asserted by Mr. Morgan and was supported by
competent substantial evidence at the hearing, the trial court's
misconception that it had "no alternative" but to sentence Mr. Morgan
according to his scoresheet constituted error under the first step of the
Banks test. See Soto v. State, 377 So. 3d 1232, 1234 (Fla. 2d DCA 2024)
("Where the trial court erroneously believes that it legally does not have
the discretion to depart, the reviewing court must reverse the sentence."
(citing Kezal v. State, 42 So. 3d 252, 254 (Fla. 2d DCA 2010))).
Accordingly, we reverse Mr. Morgan's sentences and remand for a
new sentencing hearing before a different judge. See Barnhill v. State,
140 So. 3d 1055, 1061-62 (Fla. 2d DCA 2014) (reversing sentence and
remanding for resentencing before a different judge where sentencing
court failed to consider whether the defendant was entitled to a
downward departure based upon the test set forth in Banks).
Affirmed in part, reversed in part, and remanded with instructions.
MORRIS and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.