Weber v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2025-1427 _____________________________ BRYAN ARTHUR WEBER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. William E. Davis, Judge. September 30, 2026 WINOKUR, J. Bryan Weber challenges his twelve-year sentence on two grounds: first, the trial court erred regarding a presentence investigation; and second, the court erred in choosing not to impose a departure sentence. We reject Weber’s first argument without further comment. As to Weber’s second claim, we find that his argument is foreclosed by our recent decision in Gazoombi v. State, 406 So. 3d 371 (Fla. 1st DCA 2025). We further conclude that the trial court was not required to state on the record its reasons for rejecting Weber’s request to impose a departure sentence, notwithstanding any contrary decisions of the Second District Court of Appeal. I The State charged Weber with one count each of grand theft of $100,000 or more, racketeering, scheme to defraud or organized fraud, and exploitation of an elderly person with funds, assets, or property involved in the exploitation valued at $50,000 or more. Weber entered an open no contest plea to the count of exploitation of an elderly person. The lowest permissible sentence that the court could impose without a departure was 34.5 months in prison. The maximum sentence was 30 years. See §§ 775.082(3)(b)1., 825.103(3)(a), Fla. Stat. At sentencing, Weber argued for a departure sentence, presenting two statutory grounds for departure: 1) the need for restitution outweighed the need for imprisonment; and 2) the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. See § 921.0026(2)(e), (2)(j), Fla. Stat. Weber presented evidence in support of both departure grounds; the State presented evidence in opposition. The court declined to depart from the lowest permissible sentence, imposing a sentence of twelve years in prison. The court specifically indicated that the evidence regarding the “need for restitution” departure ground was insufficient to support a departure, but it did not comment at all on the “unsophisticated, isolated, remorse” departure ground. When imposing the twelve- year sentence, the court told Weber, “You deserve more.” On appeal, Weber argues that the evidence supported the “need for restitution” departure ground and faults the trial court for choosing not to mention the “unsophisticated, isolated, remorse” departure ground when imposing sentence. Weber claims that these actions constitute misapplication of Banks v. State, 732 So. 2d 1065 (Fla. 1999), and, therefore, they constitute reversible error. We disagree. 2  II A Several statutes describe in depth the process for a departure sentence. Section 921.0024, Florida Statutes, details how a lowest “permissible” sentence is calculated. Section 921.0026(1), Florida Statutes, indicates that the court may impose a sentence below the lowest permissible sentence but cautions that a “departure from the lowest permissible sentence . . . is prohibited unless there are circumstances or factors [set forth in subsection (2)] that reasonably justify the downward departure.” (emphasis supplied). See also § 921.00265(1), Fla. Stat. (“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 defendant must establish facts that support a departure from the lowest permissible sentence by a preponderance of the evidence. § 921.002(1)(f), Fla. Stat. These statutes set forth some requirements that pertain to a decision to impose a departure sentence that do not apply to a decision to decline to impose a departure. For instance, “[a] sentence that decreases an offender’s sentence below the lowest permissible sentence . . . must be accompanied by a written statement by the sentencing court delineating the reasons for the departure[.]” § 921.00265(2), Fla. Stat. See also § 921.002(1)(f), Fla. Stat. (“Departures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge”); § 921.002(3), Fla. Stat. (“Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.”). The statutes do not impose a corresponding duty on the trial court to delineate its reasons for choosing not to depart from the lowest permissible sentence. Moreover, section 921.002(1)(h) explicitly permits appeal of a sentence if it is below the lowest permissible sentence. See also § 924.07(1)(i), Fla. Stat. (permitting the State to appeal “[a] sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 3 921.”). And again, the statutes do not correspondingly authorize an appeal of a decision not to impose a departure sentence. 1 B Despite the thorough statutory scheme for imposing a sentence below the lowest permissible sentence, Banks, rather than the applicable statutes, is often cited as establishing the standards a court must follow in deciding whether to depart. In fact, Banks considered a narrow question: what factors were necessary to establish the statutory departure ground that the need for payment of restitution to the victim outweighs the need for a prison sentence? Banks, 732 So. 2d at 1066; see § 921.0016(4)(e), Fla. Stat. (1995). 2 The trial court had imposed a departure sentence on this ground, but the State appealed and the district court reversed, finding the evidence insufficient to support the departure ground. Banks, 732 So. 2d at 1066–67. Our supreme court quashed the district court’s decision, finding that the district court had misapplied the “need for restitution” departure ground in two respects: first, the victim’s testimony that she would rather have the defendant incarcerated than to receive restitution did not require the trial court to reject departure; and second, the defendant’s ability to pay was not a relevant factor in determining whether the departure ground had been shown. Id. at 1069–70. This conclusion, regarding the “need for restitution” departure ground, expresses the holding of Banks: the trial court was permitted to depart below the lowest permissible sentence on this ground based on the facts presented there. However, prior to addressing the issue, the Banks court summarized the statutory 1 The lack of explicit statutory authorization for an appeal of a court’s refusal to depart does not deprive us of jurisdiction to hear such an appeal. Parrish v. State, 434 So. 3d 692 (Fla. 2026). We mention it only to highlight the disparity between the statutory treatment of departure sentences and non-departure sentences. 2 The current version of the “need for restitution” departure ground is set forth in section 921.0026(2)(e), Florida Statutes. The current version is unchanged from the version discussed in Banks. 4 requirements for departure. 3 This summary has been cited in dozens of appellate opinions, but it was not the court’s holding; it was the court’s description of the statutory process that the trial court uses when it decides whether to depart. Nothing suggests that the Court intended to establish requirements beyond the statutes. Banks states that a court, when it finds adequate support for a departure ground, “must determine whether it should depart,” and that this determination is reviewable on appeal for abuse of discretion. Banks, 732 So. 2d at 1068 (emphasis in original). This does not mean, however, that an appellate court can find that the evidence showed that the defendant was entitled to a departure sentence and the court abused its discretion in failing to impose one. As we noted in Gazoombi, “even if there were mitigating circumstances to support a departure sentence, there is no meritorious appellate claim to a particular sentence within a statutorily authorized range because a defendant does not have a right to have the trial court impose one sentence instead of another.” 406 So. 3d at 380. “That is, a trial court’s choice of sentence within an authorized range is not cognizable as a claimed harm that can be remedied on appeal.” Id. Accordingly, when a court provides a sentencing process and decision that comports with statutory and constitutional requirements, it cannot abuse its discretion by imposing a sentence within the authorized range. 4 3 Banks described the process as follows: “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. . . . 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.” Banks, 732 So. 2d at 1067– 68 (emphasis in original). This two-step process is consistent with the statutory process outlined in Chapter 921, Florida Statutes. 4 We have found no case holding that the sentencing court abused its discretion by choosing not to impose a departure sentence because no reasonable judge would have chosen not to depart. When an appellate court states that a trial court erred in 5  C We recently addressed the court’s obligation to set forth its reasons for rejecting a departure request in Davis v. State, 51 Fla. L. Weekly D1224 (Fla. 1st DCA June 17, 2026). In that case, the appellant argued that statutory grounds supported a departure sentence and provided evidence in support of a departure, but the sentencing court chose not to depart from the lowest permissible sentence. Id. at D1225. The appellant argued that the sentencing court erred when it did not announce any reasons for denying the requested departure sentence. Id. We rejected this argument because the applicable statutes do not require it: Section 921.002(1)(f), Florida Statutes, permits a court to impose a sentence below the guidelines. But section 921.002(3) then states, “Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.” Likewise, rule 3.703(d)(30)(A), Florida Rules of Criminal Procedure, provides, “If a sentencing judge imposes a sentence that departs from the recommended guidelines sentence, the reasons for departure shall be orally articulated at the time sentence is imposed.” . . . But no rule or statute requires a sentencing court to set forth its reasons for refusing to impose a departure. . . . Barring some exceptions that do not apply here, a sentencing court is allowed to “impose a sentence up to and including the statutory maximum” its decision to reject a departure sentence, it typically means that the court applied an arbitrary blanket policy against considering a departure, see, e.g., Little v. State, 152 So. 3d 770, (Fla. 5th DCA 2014); that the court erroneously concluded that it lacks the authority to depart when valid grounds exist, see, e.g., Patrizi v. State, 31 So. 3d 229 (Fla. 1st DCA 2010); or that the court failed to actually exercise its discretion, see, e.g., Nelson v. State, 392 So. 3d 174 (Fla. 5th DCA 2024). With these types of errors, an inflexible approach or a mistaken belief prevents the trial court from exercising appropriate discretion in deciding whether to impose a departure sentence. Weber makes no such claim here. 6  with no requirement for providing any explanation for such sentence. § 921.002(1)(g), Fla. Stat. Id. (emphasis supplied). 5 Cf. Washington v. State, 325 So. 3d 306, 307 (Fla. 1st DCA 2021) (Makar, J., concurring) (noting that “no federal constitutional requirement exists for trial judges . . . to explain the manner in which they exercised their sentencing discretion”). D “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Appellate courts must view the record in the light most favorable to sustaining the trial court’s order, see, e.g., Mendoza v. State, 941 So. 2d 523, 525 (Fla. 3d DCA 2006), and must affirm the order if any evidence or legal theory in the record supports the decision. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002). Like most decisions of a trial court, a sentencing decision is presumed correct. See, e.g., Mendoza-Magadan v. State, 217 So. 3d 112, 113 (Fla. 4th DCA 2017) (holding that, without a claim that the sentence violated a statutory requirement, the “sentence is presumed appropriate.”). Like here, Mendoza-Magadan was also reviewing a claim that the trial court was required to articulate reasons for declining a certain sentencing decision, that is, imposition of juvenile sanctions as opposed to criminal sanctions. It concluded that such a requirement is inconsistent with the presumption of correctness: Appellant contends that, without specific findings, an appellate court is unable to review whether the trial 5 The Davis appellant also sought departure because he was a youthful offender, a ground for departure pursuant to section 921.0026(2), Florida Statutes. The decision whether to sentence as a youthful offender, like the decision to depart, only requires written explanation if the sentencing judge chooses to impose a youthful offender sentence. § 958.04(3), Fla. Stat. 7  court properly considered the required factors in deciding to impose adult sanctions. . . . So long as the sentencing court complies with the statutory requirements, there is nothing for an appellate court to review. The only exception is where the facts establish a violation of a specific constitutional right during sentencing. The Florida Supreme Court has not held that the constitution requires a trial court to explain its sentence. Therefore, because appellant does not argue that the trial court failed to follow the statute, his sentence is presumed appropriate. Id. (emphasis supplied, citation and quotations omitted). In short, not only is a court not generally required to provide reasons supporting its decision to reject a statutory sentencing option, but the appellate court is required to presume, in the absence of reasons supporting the sentence on the record, that the sentence was lawful. III A Weber acknowledges that his argument regarding the “need for restitution” departure ground is inconsistent with our decision in Gazoombi. Nevertheless, he claims that he presented competent substantial evidence to support this departure ground, and therefore, a departure sentence. But, as we explained in Gazoombi, this argument leads nowhere. Because “[t]here is no constitutional or statutory right to have a trial court impose a sentence of one length or another within an otherwise properly determined range[,]” “a bald assertion that the trial court should have imposed a sentence different from the one it did is not a cognizable claim for appellate relief.” Gazoombi, 406 So. 3d at 375, 376–77 (emphasis in original). Gazoombi explains why. “When a defendant . . . asks the trial court to impose a sentence below the lowest permissible sentence, he effectively requests that the sentencing range be expanded beyond what the scoresheet establishes as the floor.” Gazoombi, 406 So. 3d at 379 (emphasis in original). “As part of that request, if the defendant identifies a legally cognizable, mitigating factor or set of circumstances and sufficiently establishes a factual basis for that 8 mitigation, the floor drops to zero, and the authorized sentencing range becomes zero to the statutory maximum.” Id. at 379–80. Accordingly, “even if there were mitigating circumstances to support a departure sentence, there is no meritorious appellate claim to a particular sentence within a statutorily authorized range because a defendant does not have a right to have the trial court impose one sentence instead of another.” Id. at 380. In other words, even if Weber presented overwhelming evidence of a statutory departure ground, and even if the court acknowledged that Weber proved such a ground, the court was not obligated to depart from the lowest permissible sentence. Put simply, proof of a departure ground does not establish any entitlement to a departure sentence. What we said in Gazoombi bears repeating: the establishment of a departure ground simply lowers the bottom end of the sentencing range; it creates no entitlement to any particular sentence within that range. See Gazoombi, 406 So. 3d at 379. Expressed in numerical terms, the sentencing range without the establishment of any statutory departure ground by Weber fell between 34.5 months and 30 years in prison. With such ground proven, that range would be zero months to 30 years in prison. Either way, Weber’s 12-year sentence falls within the statutorily prescribed range and does not constitute an abuse of discretion. B Regarding the “unsophisticated, isolated, remorse” departure ground, Weber makes a different claim. Despite his recognition that Gazoombi forecloses relief, Weber claims that two cases from the Second District support relief, Williams v. State, 286 So. 3d 892 (Fla. 2d DCA 2019) and Manyak v. State, 414 So. 3d 263 (Fla. 2d DCA 2025) (Manyak I). These cases reversed sentences where the court rejected a request to impose a departure, because the record did not reflect that the court applied the “Banks two-step analysis.” Because the court here did not state anything on the record regarding the “unsophisticated, isolated, remorse” departure ground, Weber argues that these cases support relief. We agree that Williams, Manyak I, and other Second District cases 9 (discussed below), suggest that this failure could constitute reversible error. But we disagree with their reasoning. The Second District bases its reasoning on its reading of Banks. In its attempt to apply Banks, the Second District has held repeatedly that the sentencing court commits reversible error when, in rejecting a request for a departure sentence, it does not clearly indicate on the record that it followed the two-step process. For instance, the sentencing court in Manyak I rejected a departure request, saying “I don’t find there’s a valid basis for the downward departure.” 414 So. 3d at 264. The Second District held that this finding was legally insufficient, because it was “unclear” whether the court rejected the departure request “based upon an erroneous conclusion that it lacked the authority to depart, an insufficiency of the evidence presented, or the exercise of trial court’s discretion not to depart.” Id. at 265. The court reversed the sentence and ordered the sentencing court “to apply the Banks two-step analysis” on remand. Id. 6 The Manyak I analysis comports with other Second District decisions. See, e.g., Dawson v. State, 428 So. 3d 639, 642 (Fla. 2d DCA 2026) (reversing the court’s refusal to impose a departure sentence and remanding “for the trial court to apply the Banks two-step analysis and make any necessary findings”); Williams 286 So. 3d at 898 (Fla. 2d DCA 2019) (reversing sentences and remanding “for the trial court to reevaluate the evidence and apply the correct two-step analysis” in Banks); Camacho v. State, 164 So. 3d 45, 48 (Fla. 2d DCA 2015) (vacating sentences and remanding for resentencing because the court was “uncertain whether the trial court’s ruling was based on a rejection of some of the expert’s opinions or whether it made a legal error by concluding that no legal basis for a departure existed because there was evidence of 6 The trial court in Manyak I reconsidered the sentence following remand, but the Second District reversed again because the sentencing court failed to “make clear findings” regarding the Banks factors. Manyak v. State, 51 Fla. L. Weekly D1362 (Fla. 2d DCA July 8, 2026) (Manyak II). Manyak II confirms that the Second District requires a decision to decline a departure sentence to be supported by “clear findings” made by the sentencing court. 10 substance abuse”); Kezal v. State, 42 So. 3d 252, 256 (Fla. 2d DCA 2010) (finding that the sentencing court’s rejection of a ground for departure by stating that DUI manslaughter is an “inherently unsophisticated offense” and that “I find no basis to depart downward from the sentencing guidelines” constituted reversible error because it did not reflect that the court understood that it had the authority to impose a departure). We note two issues with the Second District’s approach. • Banks does not establish rules of law independent of statutory requirements (nor could it, unless constitutionally required); it simply describes the statutory process for imposing a departure. Neither the applicable statutes, nor even Banks itself, requires the sentencing court to provide an on-the-record justification of its reasons for rejecting a departure. • A departure sentence is prohibited unless the defendant shows facts that reasonably justify the departure. But under the Second District’s approach, once a defendant asks for a departure sentence, the trial court bears the burden of explaining why the defendant is not entitled to a departure, with specific reference to the Banks “two-step analysis.” This approach does not apply the presumption of correctness that an appellate court must give to trial court decisions. Indeed, it does just the opposite. To repeat, “no rule or statute requires a sentencing court to set forth its reasons for refusing to impose a departure . . . sentence.” Davis, 51 Fla. L. Weekly at D1225. Banks does not alter this conclusion. And even if Banks set forth additional, extra- statutory requirements for a court considering a departure sentence, it does not suggest that a court commits reversible error by failing to “make clear findings” or to “make any necessary findings” regarding the Banks “two-part process.” Manyak II, 51 Fla. L. Weekly at D1362; Dawson, 428 So. 3d at 642. 7 Note also that Banks involved the imposition of a departure sentence, so the 7 Dawson does not indicate what “findings” are “necessary.” 11 trial court was in fact statutorily required to explain its reasons for departure. It appears that the Second District has taken the statutory requirement for the sentencing court to explain its reasoning to depart from the lowest permissible sentence and applied to the decision not to depart from the lowest permissible sentence, which is, again, not required by statute. We find that the Second District’s approach is inconsistent with the presumption of correctness. For instance, as stated above the court in Manyak I faulted the trial court for accompanying its decision not to depart with the statement “I don’t find there’s a valid basis for the downward departure.” Manyak I, 414 So. 3d at 264. The sentencing court’s statement in Manyak I can easily be interpreted as legally appropriate, showing either: 1) the court did not find sufficient evidence to support a departure; or 2) the court found sufficient evidence but, in its discretion, declined to impose a sentence departing from the lowest permissible sentence. But rather than presume that the trial court correctly applied the law, the Second District suggested that the statement could have been interpreted as erroneous, speculating that the decision could have been “based upon an erroneous conclusion that it lacked the authority to depart,” and that it was “unclear” whether the trial court committed that error because it failed to explicitly apply the Banks factors on the record. Manyak I, 414 So. 3d at 265. In other words, Manyak I applied a presumption of incorrectness, requiring the trial court to defend its decision not to depart. While this approach is consistent with other cases from the Second District, it is inconsistent with the presumption of correctness typically afforded trial court decisions. 8 8 It is also inconsistent with the prohibition on departure sentences without adequate support. The Second District decisions suggest instead that a sentencing court errs unless it demonstrates why a departure is not warranted. 12  IV We reject Weber’s claim that the trial court erred by refusing to impose a sentence that departs from the lowest permissible sentence. And based on our prior decision in Davis, we reject any claim that a trial court errs by failing to apply the Banks “two-step process” on the record. AFFIRMED. OSTERHAUS, C.J., and LEWIS, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Jasmine Russell Dixon, Assistant Public Defender, Tallahassee, for Appellant. James Uthmeier, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. 13