KEVIN JAY DUNMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that procedural sentencing errors not raised in the trial court cannot be raised for the first time on appeal, as they are not fundamental errors.
Dunman, a sixteen-year-old, was convicted of burglary and grand theft and sentenced. He appealed, arguing the trial court erred by not ordering a pre-…
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PER CURIAM.
Pursuant to section 39.04(2)(e)(4), Florida Statutes (1979), Dunman was charged by an information with burglary of a dwelling and grand theft, second degree. At the time of his trial in the “adult” court, Dun-man was sixteen years old. The jury convicted him of both offenses and the trial judge immediately adjudicated and sentenced him to consecutive terms of twelve years for the burglary and five years for grand theft. Dunman contends that the trial judge erred because prior to sentencing he did not order a pre-sentence investigation pursuant to Florida Rule of Criminal Procedure 3.710 and he also failed to follow the sentencing procedure mandated by section 39.111(6), Florida Statutes (1979).
These points were not raised before the trial court. They concern procedural errors which are not fundamental; therefore, they cannot be raised for the first time on appeal. Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980), cert. denied, 392 So. 2d 1375 (Fla.1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980), approved, 394 So. 2d 407 (Fla.1980); cf. Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981).
Accordingly, the judgment and sentence of appellant are affirmed without prejudice to his right to seek appropriate relief, e. g., by Florida Rule of Criminal Procedure 3.850. See Smith, supra.
AFFIRMED.
COBB, SHARP and COWART, JJ., concur.
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Cited By (13 total)
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State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)…cond District Court of Appeal reported as Rhoden v. State, 421 So. 2d 780 (Fla. 2d DCA 1982), which directly conflicts with Glenn v. State, 411 So. 2d 1367 (Fla. 5th DCA 1982); Burley v. State, 402 So. 2d 73 (Fla. 5th DCA 1981); and Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. This cause concerns the trial court’s sentencing of the juvenile respondent as an adult without complying with section 39.111(6), Florida Statutes (1981), w…1 / 2
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Monarca v. State, 412 So. 2d 443 (Fla. 5th DCA 1982)…ures set out in section 39.111(6), Florida Statutes (1979). Thus appellant has waived this issue for appellate purposes. See Greene v. State, 403 So. 2d 1126 (Fla. 5th DCA 1981); Rubasky v. State, 401 So. 2d 894 (Fla. 5th DCA 1981); Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981). The judgments and sentences are affirmed without prejudice to appellant raising his alleged sentencing error with the trial court pursuant to Florida Rule of Criminal Procedure 3.850. AFFIRMED. ORFINGER and SHARP, JJ., concur…
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Johnson v. State, 477 So. 2d 56 (Fla. 5th DCA 1985)…NGER, J., concur. . In reaching its decision, the supreme court expressly overruled the following decisions of this court: Glenn v. State, 411 So. 2d 1367 (Fla. 5th DCA 1982); Burley v. State, 402 So. 2d 73 (Fla. 5th DCA 1981); and Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981).…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980)
- Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980)
- Smith v. State, 394 So. 2d 407 (Fla. 1980)