STATE OF FLORIDA, APPELLANT,
v.
RICARDO DEON STAFFORD, APPELLEE
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The court held that the state's failure to object to a discretionary application of a sentencing multiplier waived the issue for appeal.
The state appealed a sentence imposed after the appellee pleaded guilty to grand theft auto, arguing the court improperly treated a sentencing multipl…
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STONE, Chief Judge.
The state appeals the sentence imposed following Appellee’s guilty plea to a charge of grand theft auto. The record reflects that the alleged error was not preserved for review and we therefore affirm.
Appellee had three prior convictions of grand theft auto. The sentencing guidelines provide that under these circumstances the subtotal sentence points are multiplied by 1.5. § 921.0014(1)(b), Fla. Stat. (1997). The state correctly argues that when a defendant has the requisite prior convictions, application of this sentencing multiplier is not discretionary. However, we deem this issue to be waived.
In the course of a hearing that resulted in Appellee’s “open” plea, Appellee’s attorney stated to the trial court that the multiplier was discretionary. The state did not dispute this or object. The trial court openly advised Appellee that his sentence would be nine months in jail in the event of a plea, a sentence clearly below the guidelines had the multiplier been applied. Again the : state, despite having the opportunity to do so, did not object.
A sentence may be reversed only if the error is preserved or constitutes fundamental error. § 924.051(3), Fla. Stat. (1997). The sentencing error here is essentially a downward departure sentence without stated reasons for the departure. This type of sentencing error is not fundamental. See Davis v. State, 661 So. 2d 1193, 1197 (Fla.1995).
Although the state had the opportunity to preserve the error for review by contemporaneous objection, it failed to do so. We note that the state’s silent acquiescence in this instance was prior to the court’s imposition of sentence. In reaching this result, we deem inapposite those circumstances in which the state is not on notice of the sentence until it is imposed. Therefore, the sentence is affirmed.
STEVENSON and SHAHOOD, JJ., concur.
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State v. Henriquez, 717 So. 2d 1087 (Fla. 3d DCA 1998)…equires reversal. We affirm, because the point is not properly preserved for appellate review. The State should have called to the trial court’s attention the need for downward departure reasons. See § 924.051, Fla. Stat. (1997); State v. Stafford, 711 So. 2d 612, 613, 23 Fla. L. Weekly D1235, D1235-36 (Fla. 4th DCA May 20, 1998); see also State v. Valdes, 677 So. 2d 107 (Fla. 3d DCA 1996); State v. Rodriguez, 673 So. 2d 187, 188 (Fla. 3d DCA 1996).2 We also note that, even if the point had been preserved, t…
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State v. Ackerman, 785 So. 2d 1229 (Fla. 4th DCA 2001)…at the absence of departure reasons required reversal. The appellate court refused to consider the issue, finding that it had not been properly preserved. Id. at 1087. See also State v. Baccari, 730 So. 2d 806 (Fla. 4th DCA 1999); State v. Stafford, 711 So. 2d 612 (Fla. 4th DCA 1998). If section 893.135(3) is read as mandatory, the alleged error is patent. However, it does not rise to the level of seriousness required by Maddox. Cases allowing sentencing errors to be reviewed as fundamental error involve def…
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Millien v. State, 336 So. 3d 354 (Fla. 4th DCA 2022)…the trial court was required to consider it at sentencing. In discussing a different multiplier, we have stated that when a defendant qualifies for a multiplier, “application of th[e] sentencing multiplier is not discretionary.” State v. Stafford, 711 So. 2d 612, 612 (Fla. 4th DCA 1998). However, we note that the drug trafficking multiplier, also listed in both section 921.0024(b) and Florida Rule of Criminal Procedure 3.704(19), has a clause providing that it may be applied “at the discretion” of the co…
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- Davis v. State, 661 So. 2d 1193 (Fla. 1995)