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Orlando Criminal Defense Lawyer > Blog > Sex Crime > Can the State Appeal Your Sentence in a Criminal Case?

Can the State Appeal Your Sentence in a Criminal Case?


The United States Constitution’s prohibition against double jeopardy means the state cannot try you twice for the same offense. This also means that the state cannot appeal an acquittal. If the jury finds you “not guilty,” you are free. The government has no right to appeal.

If you are convicted, however, the state can appeal the sentence imposed by the court. Under Florida law, such appeals are permitted to challenge an “unlawful or illegal sentence” or a sentence imposed “outside the range recommended by the sentencing guidelines.” With respect to the latter, Florida law permits a judge to impose what is known as a “downward departure” sentence. Essentially, this means the trial court found there was evidence justifying sentencing the defendant below the lowest sentencing guidelines recommendation.

Florida Appeals Court Orders Re-Sentencing in Child Pornography Case

Unlike at trial, where the state has the burden of proving the defendant’s guilt, at sentencing the defense must present sufficient evidence to justify a downward departure. And even if the trial court sides with the defense, the state can appeal that ruling.

Consider this recent decision from the Florida Fifth District Court of Appeal. In State v. Avery, prosecutors charged the defendant with 26 counts of possession of child pornography and 1 count of promoting a sexual performance by a child. The defendant pleaded guilty to all charges. Sentencing was left to the discretion of the trial court.

At sentencing, the defendant presented evidence suggesting he suffered from post-traumatic stress disorder (PTSD). The defense sought a downward departure based on PTSD and other factors, including substance abuse and pornography addiction. The recommended sentence under the guidelines was more than 28 years in prison. But the trial court accepted the defense’s evidence and ordered a sentence of just 10 years in prison followed by 10 years probation.

The state appealed the sentence. The Fourth District agreed with the prosecution that the evidence in this case was “insufficient to support a downward departure sentence.” As the appellate court explained, a downward departure is justified when there is evidence that the defendant suffers from a mental disorder like PTSD. But in this case, the only proof the defendant had PTSD came from his own self-diagnosis. Although the defense submitted a report from a psychologist at sentencing, the Fourth District said that report merely “recited” the defendant’s history of self-reporting.

Accordingly, the Fourth District said the trial court must conduct a new sentencing hearing.

Contact the Joshi Law Firm Today

As you can tell from the case above, possession of child pornography is a very serious offense under Florida law. One reason for this is that every single image of pornography is considered a separate offense. That is why the defendant faced over 30 specific counts. And each count is a third-degree felony punishable by up to 5 years in prison.

So if you are facing child pornography or similar charges and need legal representation from a qualified Orlando sex crimes lawyer, call the Joshi Law Firm, PA, at 844-GO-JOSHI today or contact us online to schedule a free initial consultation with a member of our team



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