STATE OF FLORIDA v. DYLAN RAY STEWART (2017)

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.

PER CURIAM.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.