IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-4123
DYLAN RAY STEWART,
Appellee.
_____________________________/
Opinion filed October 5, 2017.
An appeal from the Circuit Court for Santa Rosa County.
Ross M. Goodman, Judge.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellant.
Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender,
Tallahassee, for Appellee.
PER CURIAM.
The State appeals a downward departure sentence imposed by the trial court
after Appellee entered an unconditional nolo contendere plea to multiple counts in
five separate cases. The State argues, and Appellee concedes, that the statutory
grounds relied upon by the trial court for the downward departure sentence were
not supported by competent substantial evidence. Nevertheless, Appellee argues
that we should affirm his sentence because the record contains evidence of a non-
statutory ground for a downward departure sentence. We reject this tipsy-
coachman argument because the ground asserted by Appellee on appeal was not
discussed below and, thus, the State did not have an opportunity to rebut or oppose
this ground. See State v. Hodges, 151 So. 3d 531, 536 (Fla. 3d DCA 2014).
Accordingly, we reverse Appellee’s sentence and remand for resentencing at
which the trial court may again impose a downward departure sentence if there is
evidence to support a legally-valid ground. See Bryant v. State, 148 So. 3d 1251,
1258 (Fla. 2014). However, because Appellee pled unconditionally to the
offenses, he has no basis upon which to seek to withdraw his plea. See State v.
Jerry, 19 So. 3d 1167 (Fla. 1st DCA 2009).
REVERSED and REMANDED for resentencing.
ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.
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