ROBERT EARL JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that failure to object to a sentencing error at trial precludes appellate review, but allows for post-conviction relief.
Appellant, a juvenile, was convicted of robbery with a firearm and sentenced without consideration of a mandatory sentencing statute. No objection was…
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PER CURIAM.
Appellant, a juvenile at the time of the offense, was convicted of robbery with a firearm. At the sentencing hearing appellant was sentenced to fifteen years imprisonment. The trial court did not consider the mandatory sentencing provisions of Section 39.111(6), Florida Statutes (1979), in arriving at this disposition. However, no objection was raised by the defense at the time. Appellant raises the issue for the first time on appeal.
In a survey of the case law in this State, it appears that a distinction is made between those cases where the failure to follow the provisions of Section 39.111(6), Florida Statutes (1979), was raised in the trial court as opposed to those cases where such failure is raised for the first time on appeal.
Under the circumstances of this ease, we determine that the judgment should be affirmed, but without prejudice to appellant’s right to seek relief under Florida Rule of Criminal Procedure 3.850, if he is so advised. Rubasky v. State, 401 So. 2d 894 (Fla. 5th DCA), cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393 (1981); O’Berry v. State, 406 So. 2d 1251 (Fla. 5th DCA 1981), and Burley v. State, 402 So. 2d 73 (Fla. 5th DCA 1981); cf. Glenn v. State, 411 So. 2d 1367 (Fla. 5th DCA 1982).
On the other hand, if the point is preserved in the trial court, we would expect to reverse and remand the cause with instructions to resentence such appellant pursuant to Section 39.111(6), Florida Statutes (1979). Eady v. State, 388 So. 2d 9 (Fla. 2d DCA 1980); Williams v. State, 407 So. 2d 223 (Fla. 2d DCA 1981).
Affirmed without prejudice to appellant’s right to seek relief under Florida Rule of Criminal Procedure 3.850.
AFFIRMED.
GLICKSTEIN, DELL and WALDEN, JJ., concur.
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Mills v. State, 424 So. 2d 866 (Fla. 4th DCA 1982)…remand for resentencing. This is not a situation where the defendant complains that the sentencing judge did not comply with the provisions of Section 39.111(6), Florida Statutes (1979). Were it such a situation, then the holding in Jones v. State, 418 So. 2d 1256 (Fla. 4th DCA 1982), would govern the outcome of the sentencing question.…
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Lurry v. State, 424 So. 2d 868 (Fla. 4th DCA 1982)…the juvenile division of the circuit court for that division’s entry of a transfer order setting forth the findings of fact with respect to the eight criteria contained in Section 39.02(e), Florida Statutes (1979). On authority of Jones v. State, 418 So. 2d 1256 (Fla. 4th DCA 1982), we hold that appellant has not preserved the error complained of in his second point. However, our holding does not preclude appellant from seeking relief by means of Fla.R.Crim.P. 3.850. REMANDED with directions. BERANEK an…
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Ross v. State, 426 So. 2d 1228 (Fla. 4th DCA 1983)…rial. Yesbick v. State, 408 So. 2d 1083 (Fla. 4th DCA 1982). However, we agree with the appellant that the trial court was required to make written findings pursuant to the provisions of section 39.111(6)(d), Florida Statutes (1981). Jones v. State, 418 So. 2d 1256 (Fla. 4th DCA 1982). In addition, upon remand, the trial court should enter a written order justifying the retention of jurisdiction pursuant to the provisions of section 947.-16(3)(a), Florida Statutes (1981). [*1229] Accordingly, the judgment of t…
Authorities Cited
- Rubasky v. State, 401 So. 2d 894 (Fla. 5th DCA 1981)
- Williams v. State, 407 So. 2d 223 (Fla. 2d DCA 1981)
- Glenn v. State, 411 So. 2d 1367 (Fla. 5th DCA 1982)
- Burley v. State, 402 So. 2d 73 (Fla. 5th DCA 1981)
- Eady v. State, 388 So. 2d 9 (Fla. 2d DCA 1980)
- White v. Texas, 454 U.S. 973 (U.S. 1981)
- Rivera v. Ohio, 454 U.S. 973 (U.S. 1981)
- O'Berry v. State, 406 So. 2d 1251 (Fla. 5th DCA 1981)