Lee v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

JEFFREY W. LEE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2025-0078

June 12, 2026

Appeal from the Circuit Court for Sarasota County; Dana M. Moss,
Judge.

Jeffrey W. Lee, pro se.

James Uthmeier, Attorney General, Tallahassee, and Taylor A. Schell,
Assistant Attorney General, Tampa, for Appellee.

LUCAS, Chief Judge.

Jeffrey Lee appeals a judgment and sentence imposed after his
admitted violation of probation1 and open plea to the court. He raises
four issues for our consideration. We find merit in the third issue, in
which he argues that the trial court erred in denying his request for a

1 Lee was serving a forty-eight-month term of probation for various

theft, fraud, and drug possession crimes in 2019, 2020, and 2021. He
violated the terms of his probation on numerous occasions.
downward departure because the trial court misunderstood that it had
discretion to impose a prison sentence lower than the lowest permissible
sentence under the Criminal Punishment Code.
During sentencing, the State informed the trial court that the
lowest permissible sentence under the Criminal Punishment Code was
77.475 months. Lee moved for a downward departure, asking the court
to again reinstate probation. Alternatively, he requested a prison
sentence of less than 77.475 months.
THE COURT: I hate this for you, sir, I do, but I don't think it's
appropriate to put you back on probation yet another time.
And I know that's your request, but I don't think it is.
MR. LEE: So –
THE COURT: What I think is the appropriate –
MR. LEE: Do you –
THE COURT: -- is just give you the lowest permissible
sentence allowed under the law.
MR. LEE: Even on that, you don't believe that there's any
departure from that amount of prison time, with everything I
went through with probation?
THE COURT: I'm going to give you every bit of credit that you
have towards the sentence. I –
MR. LEE: That's crazy.
After reciting Lee's older case numbers for sentencing, the court
incorporated a new violation case, and as to that case, the court
remarked, "For that one again, I'm bound by the lowest permissible."
(Emphasis added.) Lee continued to press his argument for a lower
prison sentence.
THE COURT: . . . [Y]ou're a very smart man. I just don't think
it works for putting you on probation. I think it's just digging
a hole deeper and deeper. And I'm –
MR. LEE: Right, but I – still blows my mind that even if you
did that, that you didn't find that with everything that's
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happened and – that there could have been less prison time.
You could have said – instead of seventy-eight months, you
could have said, because of the things that happened, they
have medium weight, a little bit of weight, I'll give you fifty
months.
THE COURT: Sure.
MR. LEE: You know? It just blows my mind.
....
THE COURT: -- I'm bound by the law. So if I find a basis for a
downward departure – and I still have to find that it's
appropriate. In this case, I found it's not going to be
appropriate. So if I do a downward departure and put you
back out on probation to get treatment – which I don't think
is the right call here, I just don't under these circumstances.
But the law doesn't give me the discretion to say, well, even
though I don't think you're a candidate for probation, it's
appropriate to put you back out, you did pretty well in some
areas – and you did. You finished the CORT program. You've
done some things very well, and I'm hearing that. But by me
finding that you're not a candidate for probation, I don't think
you're amenable to continuing with this, I don't have the
discretion to say, but I'll just shave some time off of this lowest
permissible. It doesn't –
MR. LEE: Okay.
THE COURT: It doesn't work that way. If I'm going to find a
basis for downward departure, it's because I'm going to put
you back out there and keep going with treatment, which I
just don't think it's right to put you back on probation again.
(Emphasis added.)
After the court entered concurrent prison sentences of 77.475
months on all of Lee's cases, this appeal was timely filed. We have
jurisdiction.2

2 In Barnhill v. State, 140 So. 3d 1055, 1060 (Fla. 2d DCA 2014),

this court concluded that appellate courts have the jurisdiction to correct
sentencing errors that are unlawful but "not completely illegal" and
therefore can review a trial court's denial of a downward departure
3
Generally, we review an order on a motion for downward
departure for an abuse of discretion. Banks v. State, 732 So.
2d 1065, 1068 (Fla. 1999). "But because the issue here
revolves around the trial court's applying an incorrect
standard in determining whether to exercise its discretion, we
apply a de novo standard of review." Barnhill v. State, 140 So.
3d 1055, 1060–61 (Fla. 2d DCA 2014).
White v. State, 350 So. 3d 401, 403 (Fla. 2d DCA 2022).
In Banks v. State, 732 So. 2d 1065, 1067–68 (Fla. 1999), the
Florida Supreme Court established a two-part test trial courts must
employ when considering a motion for downward departure of a criminal
sentence: first, the court must determine "whether there is a valid legal
ground and adequate factual support for that ground" for departure
(whether the court can depart); second, the trial court must decide
"whether departure is indeed the best sentencing option for the
defendant" (whether it should depart). As to the first step—whether a
court can depart—the Fourth District drew an important distinction
between lowest permissible sentences and minimum mandatory
sentences in Jones v. State, 414 So. 3d 199, 201 (Fla. 4th DCA 2025).
Jones' offense was not subject to any "minimum
mandatory sentence." Jones was subject to the lowest
permissible sentence as calculated by his CPC scoresheet.
§ 921.00265(1), Fla. Stat. (2021) ("The lowest permissible

request. We must note that there is a jurisdictional split as to whether
an appellate court has jurisdiction to review a trial court's denial of a
downward departure request after a guilty plea is entered. In Wilson v.
State, 306 So. 3d 1267, 1273 (Fla. 1st DCA 2020), review granted, 2021
WL 1157838 (Fla. Mar. 26, 2021), the First District certified conflict with
the decisions reached in Barnhill, 140 So. 3d at 1060, Kiley v. State, 273
So. 3d 193, 194 (Fla. 5th DCA 2019), and Fogarty v. State, 158 So. 3d
669, 671 (Fla. 4th DCA 2014), and concluded that a defendant may not
appeal an order denying a motion for a downward departure. Since the
Florida Supreme Court is currently reviewing this conflict and has not
yet issued an opinion, we will abide by this court's interpretation of the
law, as outlined in Barnhill.
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sentence . . . is assumed to be the lowest appropriate
sentence for the offender being sentenced. A departure
sentence is prohibited unless there are mitigating
circumstances or factors present as provided in s. 921.0026
which reasonably justify a departure."). The CPC's lowest
permissible sentence is not a "minimum mandatory
sentence." A trial court has discretion under the CPC to
depart below the lowest permissible sentence. See
§ 921.0026, Fla. Stat. (2021) (setting out some mitigating
circumstances that may "reasonably justify" a downward
departure).
Id. (alteration in original). Recently, in Morgan v. State, 427 So. 3d 141,
144 (Fla. 2d DCA 2025), we reversed a trial court's denial of a downward
departure motion where the trial court "erroneously found that it had 'no
alternative' but to sentence Mr. Morgan according to his criminal
punishment code scoresheet," when, in fact, the defendant's autism
diagnosis could have supported a lower prison sentence.
The holdings in Morgan and Jones apply here. The trial court
proceeded under the misconception that the only downward departure
alternative to Lee's lowest permissible sentence would have been another,
futile attempt at probation. The trial court had another option. It could
have, as Lee repeatedly requested, imposed a prison sentence less than
77.475 months.
We express no opinion on whether there is, in fact, a viable basis
for a downward departure prison sentence or, if there is, whether it
would be appropriate to impose such a sentence. That will be for a judge
to decide at resentencing. We simply hold that the trial court erred when
it concluded that extending Lee's probation was the only basis upon
which it could have entered a downward departure sentence. On that
limited basis, we reverse and remand for resentencing in accordance with
this opinion.
Reversed and remanded with directions.
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SILBERMAN and SMITH, JJ., Concur.

Opinion subject to revision prior to official publication.

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