ESTEBAN SALDANA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions and sentences affirmed because sentencing error regarding victim injury points was neither fundamental nor timely raised, as defendant failed to preserve the issue by raising it at sentencing or filing a timely motion to correct sentence.
A defendant who pleads nolo contendere without expressly reserving the right to appeal the sentence cannot raise sentencing errors on appeal unless the error constitutes fundamental error.
[1] A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal the sentence by raising the issue at sentencing or filing a timely motion…
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Join FLexlaw to unlock all legal intelligenceEsteban Saldana pleaded nolo contendere to three counts of performing a lewd and lascivious act upon a child under 12 and one count of attempted sexua…
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PETERSON, Judge.
Esteban Saldana entered a plea of nolo contendere to three counts of performing a lewd and lascivious act upon a child under 12 and one count of attempted sexual battery upon a child under 12. Although he never raised a sentencing error in the lower tribunal, he asserts that he may raise for the first time on appeal that 40 victim injury points for sexual penetration were added to his scoresheet instead of the correct number of 18 points for sexual contact.
Subsections 924.051(3) & (4), Florida Statutes (1996 Supp.) and amended Florida Rule of Criminal Procedure 3.800(b) provide that a defendant pleading guilty or nolo con-tendere without expressly reserving his right to appeal the sentence either by way of raising the issue at the sentencing hearing, or by filing a motion to correct sentence within 30 days after the rendition of the sentence has not preserved the issue for purposes of appeal, absent an error that constitutes fundamental error. See Amendments to The Florida Rules of Appellate Procedure, 685 So. 2d 773, 775 (Fla.1996); Rangel v. State, 692 So. 2d 277 (Fla. 5th DCA 1997); Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997). The effective date of both the new statute and the amended rule 3.800 was July 1,1996. Appellant was sentenced on August 8, 1996, after the effective date of the new statute and rule.
We affirm appellant’s convictions and sentences because the alleged error is neither fundamental nor was it timely raised.
AFFIRMED.
DAUKSCH and GOSHORN, JJ., concur.
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Citator
Cited By
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…t recede from several of our earlier opinions. As indicated, this court will no longer recognize fundamental error in the sentencing context, contrary to the statements made in Medberry v. State, 699 So. 2d 857 (Fla. 5th DCA 1997), Saldana v. State, 698 So. 2d 338 (Fla. 5th DCA 1997), Rangel v. State, 692 So. 2d 277 (Fla. 5th DCA 1997), Ortiz v. State, 696 So. 2d 916 (Fla. 5th DCA 1997) and Bisson v. State, 696 So. 2d 504 (Fla. 5th DCA 1997). Nor will this court address illegal [*621] sentences on direct appe…
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Salim Kamau Latiif v. State, 711 So. 2d 241 (Fla. 5th DCA 1998)…he sentence either by raising the issue at the sentencing hearing, or by filing a motion to correct sentence within thirty days after the rendition of the sentence has failed to preserve the issue for purposes of appeal. [*242] See Saldana v. State, 698 So. 2d 338 (Fla. 6th DCA 1997). An issue is preserved for appellate review when “the issue has been presented to, and ruled on by the trial court.” Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). Here, although the defense counsel refuted the calculations…
Authorities Cited
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Arlecia Michelle Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997)
- Oliveri v. State, 692 So. 2d 277 (Fla. 5th DCA 1997)