Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KEITH WHITE, JR., Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1713 October 7, 2022 Appeal from the Circuit Court for Pinellas County; William H. Burgess, III, Judge. Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge. Keith White appeals his judgment and sentence rendered after he pleaded guilty to one count of leaving the scene of an accident involving death. See § 316.027(2)(c), Fla. Stat. (2020). Because the trial court failed to apply the proper test when determining whether to grant a downward departure, we reverse Mr. White's sentence and remand for a new sentencing hearing before a different judge.1 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 1 The State argues that this court lacks jurisdiction to review the denial of a motion for downward departure rendered after a guilty plea. We acknowledge that the supreme court is currently reviewing Wilson v. State, in which the First District held that a defendant cannot appeal the denial of a motion for downward departure after entering a plea. See Wilson v. State, 306 So. 3d 1267, 1273 (Fla. 1st DCA 2020), review granted, SC20-1870, 2021 WL 1157838 (Fla. Mar. 26, 2021). In Wilson, the First District certified conflict with Barnhill v. State, 140 So. 3d 1055, 1060 (Fla. 2d DCA 2014); 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), all of which hold that defendants can appeal a denial of a motion for downward departure after a plea as a sentencing error under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii). Because the supreme court has not yet issued an opinion in Wilson, we follow the law of this district—allowing an appeal from the denial of a motion for downward departure rendered after a plea—and thus, this court has jurisdiction over Mr. White's case. See Barnhill, 140 So. 3d at 1059–60. 2 standard of review." Barnhill v. State, 140 So. 3d 1055, 1060–61 (Fla. 2d DCA 2014). In determining whether to grant a motion for downward departure, a trial court is required to engage in a two-part process set forth under Banks: 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, 732 So. 2d at 1067–68 (footnotes omitted). 3 In the case before us, while the trial court used language from the statute: "I do not find that there is a fact or consideration or circumstances that clearly demonstrates that imposing a mandatory minimum term of imprisonment would constitute or result in an injustice," it failed to apply the test in Banks. Therefore, it failed to consider whether Mr. White presented sufficient evidence to meet any of the statutory criteria that would have allowed for a downward departure. See § 921.0026, Fla. Stat. (2020) (governing mitigating circumstances that allow for a downward departure from the lowest permissible sentence and providing that "[t]his section applies to any felony offense, except any capital felony, committed on or after October 1, 1998"). Because the trial court failed to apply the correct standard in considering Mr. White's motion for downward departure, we vacate Mr. White's sentence and remand for resentencing before a different judge. See Williams v. State, 286 So. 3d 892, 898 (Fla. 2d DCA 2019) (reversing the sentence and remanding for the trial court to apply the correct two-step analysis); Barnhill, 140 So. 3d at 1061– 62 (reversing sentence and remanding for resentencing before a different judge where sentencing court failed to consider whether 4 the defendant was entitled to a downward departure based upon the test set forth in Banks). Reversed and remanded. KHOUZAM and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 5