State v. Resh

Decision Date19 September 2008
Docket NumberNo. 5D07-3103.,5D07-3103.
Citation992 So.2d 294
PartiesSTATE of Florida, Appellant, v. Thomas Blain RESH, Appellee.
CourtFlorida District Court of Appeals

COHEN, J.

The State challenges the trial court's downward departure sentence and refusal to score victim injury points on Thomas Blain Resh's Criminal Punishment Code Scoresheet. We affirm.

This case arises from the tragic death of a thirteen-year-old boy who was struck and killed while crossing the road after Resh ran a red light. Resh fled the scene, but ultimately turned himself in to the police two weeks later. After Resh pled guilty to leaving the scene of an accident involving death, tampering with physical evidence, and operating a vehicle without a driver's license causing death, the trial court scheduled sentencing.

At sentencing, the trial court orally pronounced that it was imposing a downward departure sentence. The State objected to the downward departure from the sentencing guidelines, but not the refusal to add victim injury points. In its written order, the trial court explained the reasons for its downward departure and also its refusal to score victim injury points. Although arguing on appeal that the trial court erred in not adding victim injury points, the State never contemporaneously objected. The State's failure to bring this error to the attention of the trial court precludes it from raising the issue now. See Fla. R.App. P. 9.140(e).

The State also challenges the trial court's basis for the downward departure from the sentencing guidelines. A trial court's decision to impose a downward departure sentence requires a two-step analysis. First, it must determine whether there is a valid legal ground supported by adequate facts. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). This is a mixed question of fact and law that will be sustained if the correct rule of law was applied and it is supported by competent, substantial evidence. Id. Second, the trial court must determine whether the downward departure is the best sentencing option for the defendant. Id. at 1068. This is reviewed for an abuse of discretion. Id.

The trial court gave two reasons for its downward departure. First, that Resh's capacity to appreciate the criminal nature of his conduct or conform his conduct to the requirements of law was substantially impaired. Second, that the offense was an isolated incident that was committed in an unsophisticated manner for which Resh had shown...

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3 cases
  • State v. Fureman, 5D12–2778.
    • United States
    • Florida District Court of Appeals
    • February 21, 2014
    ...Statutes (2011), which is a statutory basis and, therefore, is a permissible legal reason to downward depart. See State v. Resh, 992 So.2d 294 (Fla. 5th DCA 2008). We, therefore, address whether there is competent, substantial evidence to support a finding of unsophistication. The trial cou......
  • Mediate v. State
    • United States
    • Florida District Court of Appeals
    • March 1, 2013
    ...preserve the right to challenge this sentencing error on appeal by raising the issue first in the trial court. Accord State v. Resh, 992 So.2d 294 (Fla. 5th DCA 2008). Here, the defendant is raising the issue of the trial court's failure to set forth written reasons for departure for the fi......
  • State Of Fla. v. Betancourt
    • United States
    • Florida District Court of Appeals
    • July 2, 2010
    ...with the trial court's decision.(Emphasis supplied). See also State v. Geoghagan, 27 So.3d 111, 113 (Fla. 1st DCA 2009); State v. Resh, 992 So.2d 294 (Fla. 5th DCA 2008). Thus, while the list of statutory departure reasons provided in section 921.0026(2), Florida Statutes (2008), is not exc......

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