ROBERT EARL BRUMLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Earl Brumley appeals his conviction and sentence, arguing the trial court erred in retaining jurisdiction over one-half of his sentence when Florida law had been amended to permit retention of only one-third. The Fifth District affirmed the convictions and sentences but remanded for correction of the retention-of-jurisdiction portion, also certifying a question to the Florida Supreme Court regarding whether a contemporaneous objection is required to preserve such challenges on appeal.
The court affirmed the convictions and held that the reduced retention period mandated by the 1983 amendment should apply to sentences imposed after that date. The court held that a contemporaneous objection is not required to preserve the issue of wrongful retention of jurisdiction on direct appeal, citing State v. Rhoden.
[1] A trial court's retention of jurisdiction over a portion of a defendant's sentence is governed by the law in effect at the time of sentencing when the period of retention…
[2] A contemporaneous objection is not required to preserve for appeal an alleged error in a trial court's retention of jurisdiction over a defendant's sentence.
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Join FLexlaw to unlock all legal intelligence“because the period of retention was reduced, the law in effect at the time of sentencing should prevail”
Establishes that the amended retention period applies to sentences imposed after the amendment, even if the original sentence retained a larger portion.
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Join FLexlaw to unlock all legal intelligenceBrumley was convicted and sentenced by the trial court. The court retained jurisdiction over one-half of each of his sentences to review future Parole…
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ORFINGER, Judge.
We find no merit in the issues raised by defendant with regard to the trial proceedings, so the convictions are affirmed.
Appellant contends also that the trial court erred in retaining jurisdiction over one-half of each sentence, because effective June 15, 1983, the legislature had amended section 947.16(3) to permit retention of jurisdiction over one-third of a defendant’s sentence, instead of one-half, and defendant was sentenced after that date. We agree with the decision in Hayes v. State, 448 So. 2d 84 (Fla. 2d DCA 1984), that because the period of retention was reduced, the law in effect at the time of sentencing should prevail.
The State’s contention is that the issue as to whether the court erred in retaining jurisdiction was not preserved for appeal because no objection was made below. This position, is arguable under Williams v. State, 414 So. 2d 509 (Fla.1982) and is one which we had previously adopted [see, e.g., Gaskins v. State, 415 So. 2d 132 (Fla. 5th DCA 1982) ], but this principle has apparently been rejected by the Florida Supreme Court in State v. Rhoden, 448 So. 2d 1013, (Fla.1984),-where the court held that the purpose for which the contemporaneous objection rule exists is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge.
We have rejected the need for a contemporaneous objection as necessary to preserve the issue involved here, in Neal v. State, 451 So. 2d 1058 (Fla. 5th DCA 1984). The First District Court of appeal has taken the opposite view in Cofield v. State, 453 So. 2d 409 (1984), but we agree with the dissenting view of Judge Ervin that Rhoden dispenses with the need for such objection as a necessary prerequisite for an appeal of an alleged wrongful retention of jurisdiction. Cofield would appear to be in conflict with the earlier decision of the First District in Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984).
The judgments of conviction and sentences are affirmed, and the cause is remanded to the trial court with instructions to amend that portion of each sentence which retains jurisdiction to review future Parole Commission orders so as to limit such jurisdiction to not more than one-third of each sentence.
We certify to the Supreme Court of Florida, as a question of great public importance, the following:
WHETHER, BY OPERATION OF THE CONTEMPORANEOUS OBJECTION RULE, A DEFENDANT IS PRECLUDED FROM CHALLENGING, ON DIRECT APPEAL, THE TRIAL COURT’S RETENTION OF JURISDICTION OVER ONE-HALF OF HIS SENTENCE WHEN NO OBJECTION TO SUCH RETENTION IS MADE AT THE TIME OF SENTENCING?
AFFIRMED; QUESTION CERTIFIED.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985)…objection was made at the time of sentencing, this error as to arithmatic miscalculation may be raised for the first time on appeal, State v. Rhoden, 448 So. 2d 1013 (Fla.1984); Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984), and that considering the admitted erroneous calculation, the sentence be and the same is hereby vacated and set aside and the matter is returned to the trial court for a resentenc-ing after a new computation in accordance with t…
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Powlowski v. State, 467 So. 2d 334 (Fla. 5th DCA 1985)…preme court specifically disapproved Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983), and thus we believe has also implicitly disapproved our previous holdings on this issue in Montoya v. State, 458 So. 2d 341 (Fla. 5th DCA 1984); Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984); and Neal v. State, 451 So. 2d 1058 (Fla. 5th DCA 1984). The trial court thus correctly applied the law in effect at the time of sentencing, because the “legal consequences of retained jurisdiction had already attached under the…
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Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984)…bjection, we have previously held, contrary to the State’s position, that the contemporaneous objection rule does not apply to sentencing errors where, as here, it is contended that there was an erroneous retention of jurisdiction. Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984) [9 FLW 1945], relying on Rhoden v. State, 448 So. 2d 1013 (Fla.1984). For the reasons expressed in Brumley, we reject the State’s argument [*917] on that issue. See also, Neal v. State, 451 So. 2d 1058 (Fla. 5th DCA 1984). So th…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Williams v. State, 414 So. 2d 509 (Fla. 1982)
- Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984)
- Neal v. State, 451 So. 2d 1058 (Fla. 5th DCA 1984)
- Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA 1984)
- Gaskins v. State, 415 So. 2d 132 (Fla. 5th DCA 1982)
- Hayes v. State, 448 So. 2d 84 (Fla. 2d DCA 1984)