ELI BUTLER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction and upward departure sentence are affirmed because he failed to preserve the issue of untimely written sentencing reasons by not objecting in trial court, and any error was not fundamental.
A defendant who fails to object in trial court to the trial court's failure to timely file written reasons for an upward departure sentence does not preserve the issue for appeal and cannot obtain resentencing absent a showing of fundamental error.
[1] Failure to timely file written reasons for an upward departure sentence is not preserved for appellate review when the defendant does not object in trial court, and such…
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Join FLexlaw to unlock all legal intelligenceThe trial court imposed an upward departure sentence and explained its reasons on the record at the sentencing hearing. Appellant's counsel objected t…
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WEBSTER, J.
In this direct criminal appeal, the sole issue presented is whether appellant is entitled to be resentenced pursuant to the sentencing guidelines because the trial court failed timely to file written reasons justifying its upward departure sentence. It is undisputed that the trial court did explain on the record at the sentencing hearing why it was imposing an upward departure sentence. Although appellant’s counsel objected to the reasons announced by the trial court during the sentencing hearing, appellant does not challenge the sufficiency of those reasons on appeal. Appellant did not object in the trial court to the failure timely to file written reasons justifying the departure sentence imposed. Because the issue raised was never presented to the trial court, it was not preserved. In addition, appellant has failed to demonstrate how he has been prejudiced by the failure timely to file written reasons. To the extent that error occurred, it is not “fundamental.” Davis v. State, 661 So. 2d 1193 (Fla.1995). Accordingly, we affirm. § 924.051(3), Fla.Stat. (Supp.1996). See Weiss v. State, 23 Fla.L. Weekly D2380, 720 So. 2d 1113 (Fla. 3d DCA 1998); Jordan v. State, 23 Fla.L. Weekly D2130, — So. 2d —, 1998 WL 621355 (Fla. 3d DCA Sept.16, 1998).
AFFIRMED.
WOLF and LAWRENCE, JJ., concur.
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…WELLS, J., concurring in part and dissenting in part. I certainly respect and appreciate the hard work of Justice Pariente in this labyrinth of cases. In concur in the result obtained in all cases except Butler v. State, 723 So. 2d 865 (Fla. 1st DCA 1998). In Butler; I find the district court’s conclusion that Butler was “not prejudiced” by the error undermines this Court’s determination that the error was fundamental. I write further for two'reasons. First, to acknowledge that…1 / 4
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Edmondson v. State, 745 So. 2d 533 (Fla. 1st DCA 1999)…w he has been prejudiced by the failure timely to file written reasons. To the extent that error occurred, it is not “fundamental.” Davis v. State, 661 So. 2d 1193 (Fla.1995). Accordingly, we affirm. § 924.051(3), Fla. Stat. (1997); Butler v. State, 723 So. 2d 865 [*534] (Fla. 1st DCA 1998), review granted, 735 So. 2d 1283 (Fla.1999). AFFIRMED. JOANOS and PADOVANO, JJ., CONCUR.…
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Edmondson v. State, 771 So. 2d 1136 (Fla. 2000)…PER CURIAM. We have for review Edmondson v. State, 745 So. 2d 533 (Fla. 1st DCA 1999), a decision of the First District Court of Appeal citing as controlling authority its opinion in Butler v. State, 723 So. 2d 865 (Fla. 1st DCA 1998), quashed, 761 So. 2d 319 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue in this case involves the trial court’s failure to comply with the statutory requirement to file written reasons for imposi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998)