EMKE v. STATE (2020)

BY ORDER OF THE COURT:

Appellant's motion for rehearing is denied. On the court's own motion, the prior opinion dated July 17, 2020, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

Sean Patrick Emke appeals the imposition of a prison sentence of 636.45 months. While serving probation on a prior case of possession of child pornography,¹ he was arrested and charged with forty new counts of possession of child pornography. He entered an open plea of no contest on these new counts and admitted to violating the terms of his probation. On Mr. Emke's criminal punishment code scoresheet, see Fla. R. Crim. P. 3.992(a), the trial court designated one count of possession of child pornography as the primary offense. The remaining thirty-nine counts of possession of child pornography were scored as additional offenses. According to Mr. Emke's scoresheet, his lowest permissible sentence, absent a downward departure, was 636.45 months in prison. The trial court sentenced Mr. Emke to 636.45 months in prison on each count.

Mr. Emke raises two issues on appeal. We find no merit as to the first issue and affirm without comment the circuit court's decision not to downward depart on his sentences. As to his second issue, we affirm the sentences imposed based upon our decision in Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019). But see Gabriel v. State, 44 Fla. L. Weekly D2913, ––– So.3d ––––, 2019 WL 6621255 (Fla. 5th DCA Dec. 6, 2019), review granted No. SC19-2155, 2020 WL 1888656 (Fla. Apr. 16, 2020).

Affirmed.

FOOTNOTES

1.   In lower court case number 2010-CF-001445AX, Mr. Emke pleaded nolo contendere to twenty counts of possession of child pornography.

PER CURIAM.

MORRIS, SLEET, and LUCAS, JJ., Concur.