Geske v. State
The Second District affirmed the denial of a downward departure motion in a child pornography possession case, holding that errors in the sentencing process (misapplication of the two-part departure test, reliance on improper factors) constitute fundamental error not requiring preservation via objection or a rule 3.800(b) motion. The court found that although the trial court appeared to apply an incorrect (higher) burden of proof at step one of the departure analysis, the error was harmless because the trial court made clear it would not exercise its discretion to depart at step two regardless of the evidence.
Key facts
- Defendant Geske was convicted of child pornography possession and sentenced; he moved for a downward departure from the mandatory minimum sentence.
- The trial court denied the downward departure motion after applying what appeared to be an incorrect burden of proof at step one of the departure analysis and considering various sentencing factors.
- +2 more key facts with a free trial
Why it matters
This opinion provides a useful roadmap for practitioners litigating downward departure motions, particularly reinforcing that sentencing-process errors (misapplication of the two-part Banks/Barnhill test, blanket… — full analysis with a trial
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