SHAWN TROY NEVELS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shawn Troy Nevels pleaded nolo contendere to dealing in stolen property and admitted probation violations. He was sentenced to concurrent prison terms and assessed a $10,000 civil restitution lien under Florida Statute 960.293. On appeal, Nevels challenged the statute's constitutionality, but the court affirmed, finding the constitutional issue was not properly preserved for review.
The appellate court declined to address the constitutionality of section 960.293 because the issue was not properly presented to the trial court and therefore was not preserved for appellate review. The judgment and sentence were affirmed.
[1] An appellate court will not consider an issue that has not been properly presented to the lower court, absent fundamental error.
[2] A constitutional challenge to a statute must be specifically argued and preserved in the trial court to be reviewable on appeal.
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Join FLexlaw to unlock all legal intelligence“Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.”
Establishes the preservation requirement for appellate review of issues not raised with adequate specificity in the trial court.
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Join FLexlaw to unlock all legal intelligenceNevels entered a negotiated plea of nolo contendere to dealing in stolen property and admitted violating his previously imposed probation. The trial j…
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PER CURIAM.
Appellant, Shawn Troy Nevels, entered a negotiated plea of nolo contendere to a charge of dealing in stolen property and admitted violating his previously imposed probation. The trial judge accepted appellant’s plea, ordered him to seive two three-and-one-half-year concurrent prison terms on the violation of probation and the charge of dealing in stolen property. In addition, the trial judge assessed appellant $10,000 as a civil restitution lien pursuant to section 960.293, Florida Statutes (Supp.1994). Appellant challenges only the constitutionality of section 960.293. We decline to address the constitutionality of that statute, finding that that issue was not properly presented to the trial court and, therefore, not preserved for review by this court.
The proceedings before the trial judge were very brief. At the time of the nolo plea, appellant’s attorney made an oral motion asking the trial judge to hold the statute unconstitutional. No supporting argument was made. After a discussion of the proper procedure under the statute, appellant’s attorney concluded as follows:
Judge, I’ve had an opportunity to talk to Mr. Nevels, and he would like to go ahead and enter a plea of no contest to the new charge and admit the violation. And pursuant to our understanding as to what the court indicated you would sentence him, we would object to the imposition of the mandatory $10,000 restitution lien and the cost of incarceration.
We believe that it’s an unconstitutional provision of the Florida legislature in violation of the due process clause of the United States Constitution and the Florida Constitution.
And, otherwise, we would like to proceed with the plea as indicated.
Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted. Tillman v. State, 471 So. 2d 32 (Fla.1985); Steinhorst v. State, 412 So. 2d 332 (Fla.1982); Sanford v. Rubin, 237 So. 2d 134 (Fla.1970).
Appellant has not preserved any properly-argued constitutional issue for review by this court. We, therefore, finding no fundamental error demonstrated, affirm the judgment and sentence of the trial court.
CAMPBELL, A.C.J., and LAZZARA and QUINCE, JJ., concur.
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State v. Hunton, 699 So. 2d 320 (Fla. 2d DCA 1997)…o reverse the trial court’s ruling. “Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.” Nevels v. State, 685 So. 2d 856, 857 (Fla. 2d DCA 1995) (citations omitted). Accordingly, we affirm the trial court’s conclusions announced at the suppression hearing, but remand for entry of a corrected written order to conform to the court’s oral rulings. CAMPBELL, A.C.J., and…
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In the Interest of D.G. v. Dep't of Child. & Fam. Servs., 970 So. 2d 486 (Fla. 2d DCA 2007)…l error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.’” State v. Hunton, 699 So. 2d 320, 321 (Fla. 2d DCA 1997) (quoting Novels v. State, 685 So. 2d 856, 857 (Fla. 2d DCA 1995)). We will not speculate as to whether appointed counsel could have preserved N.L.E.’s arguments for our review. N.L.E. had the opportunity but declined to have attorney Clark represent her in connection with the emergency mot…
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Shawntre Smith v. State, 25 So. 3d 577 (Fla. 1st DCA 2009)…ue was not preserved for appellate review, and we do not find fundamental error. See F.B. v. State, 852 So. 2d 226, 229 (Fla.2003) (“The sole exception to the contemporaneous objection rule applies where the error is fundamental.”); Nevels v. State, 685 So. 2d 856, 857 (Fla. 2d DCA 1995) (“Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.”). To the extent the second…
Authorities Cited
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)