A Sarasota defendant who pleaded no contest to child-pornography charges is entitled to a new sentencing hearing, and before a different judge, because the trial court failed to properly consider his request for a downward-departure sentence, the Second District Court of Appeal held December 31.
Winston Morgan pleaded no contest to forty counts of possession and one count of transmission of child pornography. He did not challenge his convictions, which the court affirmed. He argued the trial court wrongly denied his motion for a downward departure, including a youthful-offender sentence under section 958.04 and departure grounds under section 921.0026(2).
Applying the two-step framework from Banks v. State, the panel agreed the trial court erred. Where a court has the discretion to depart but fails to consider whether departure is warranted, the reviewing court must reverse the sentence. The Second District reversed Mr. Morgan’s sentences and remanded for a new sentencing hearing before a different judge.
**Why it matters:** a sentencing court must actually apply the Banks analysis when a defendant seeks a downward departure. Skipping that step is reversible error, and can send the case to a new judge on remand.
*Case: Morgan v. State, No. 2D2024-0125 (Fla. 2d DCA Dec. 31, 2025). Opinion by Judge Smith.*