EDWARD FILLYAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Fillyaw appeals his conviction and sentences for unarmed robbery, dealing in stolen property, and burglary, challenging his habitual offender status and restitution amount. The First District Court of Appeal affirms, holding that Fillyaw's habitual offender sentence is not illegal on its face and that he failed to preserve the restitution issue for appeal.
Fillyaw's habitual offender sentence is not illegal on its face because he agreed to the classification in his negotiated plea, the qualifying offenses are valid, and the trial court properly conducted a habitual offender proceeding. Additionally, Fillyaw failed to preserve the restitution issue for review by not objecting at sentencing or filing a motion to correct pursuant to Rule 3.800(b).
[1] A challenge to habitual offender status is not preserved for appeal if the defendant agreed to the classification in a negotiated plea and the sentence is not illegal on…
[2] A defendant's agreement to habitual offender classification in a negotiated plea waives the right to challenge that classification on appeal, absent a sentence that is il…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellant's sentence, however, is not illegal on the face of the record.”
Establishes that even though unpreserved habitual offender challenges may be raised on appeal under Nelson, they must be illegal on the face of the record to succeed.
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Join FLexlaw to unlock all legal intelligenceFillyaw was convicted of unarmed robbery, two counts of dealing in stolen property, and burglary. He agreed to habitual offender classification in a n…
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PER CURIAM.
Edward Fillyaw appeals his conviction and sentences for unarmed robbery, two counts of dealing in stolen property and burglary. He challenges his habitual offender status and the amount of restitution entered. We affirm.
Appellant initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel cited Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997) which held that unob-jected-to errors in finding a defendant to be a habitual felony offender could not be raised on appeal. Counsel subsequently filed a motion to withdraw the Anders brief on the ground that this court receded from Middleton in Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998). In Nelson, this court allowed unpreserved challenges to habitual offender sentences to be raised for the first time on appeal where the sentence; is illegal on the face of the record. Appellant’s sentence, however, is not illegal on the face of the record.
Appellant agreed to habitual offender classification in his negotiated plea. The offenses with which he was charged were qualifying offenses for habitual offender sentencing. Appellant had eleven prior felonies including two grand thefts which were committed within five years of his present offense.. The qualifying offenses have not been set aside, nor has appellant received a pardon on them. Additionally, the trial court conducted a separate proceeding to determine if appellant is a habitual felony offender and should be sentenced as such. After' conducting the proceeding in open court with full rights of confrontation, cross-examination and representation by counsel, the court found by a preponderance of evidence that appellant met the statutory criteria of a habitual felony offender and reduced those findings to writing. We affirm because appellant failed to object or withdraw his plea, and the sentence is not illegal on its' face.
Appellant failed to preserve the restitution isshe for review hy objecting below or filing a motion to correct pursuant to Rule 3.800(b), Florida Rules of Criminal Procedure. See Velez v. State, 725 So. 2d 1280 (Fla. 4th DCA 1999)(hold-ing restitution issue was not preserved for appeal where appellant neither objected at sentencing nor filed a motion to .correct sentence pursuant to Florida.. Rule of Criminal Procedure); Lorenzana v. State, 717 So. 2d 119 (Fla. 4th DCA 1998)(same); cf. Locke v. State, 719 So. 2d 1249 (Fla. 1st DCA T998)(en banc)(holding trial court’s failure to orally itemize statutorily authorized discretionary costs at the time of sentencing was not fundamental error because Rule 3.800(b), Florida Rules of Criminal Procedure, provides a formal mechanism for a post-judgment hearing and an opportunity to be heard in the trial court on the imposition of costs).
AFFIRMED.
JOANOS, ALLEN and KAHN, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Rachelle Marie James v. State, 223 So. 3d 288 (Fla. 4th DCA 2017)…tution hearing, Appellant failed to preserve the issue for appellate review. See Kiefer v. State, 909 So. 2d 572, 574 (Fla. 5th DCA 2005) (“We have held that the contemporaneous objection rule applies to restitution proceedings.”); Fillyaw v. State, 734 So. 2d 1136, 1137 (Fla. 1st DCA 1999) (similar); J.S. v. State, 717 So. 2d 175, 177 (Fla. 4th DCA 1998) (“Because restitution is imposed after a contested adversary hearing, there is no reason to create a different rule than the one prevailing at trial, where a…
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Ravenscroft v. State, 838 So. 2d 589 (Fla. 1st DCA 2003)…rors will be entertained on appeal if the defendant had available to him the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b)”), review granted by 797 So. 2d 585 (Fla.2001); see also Fillyaw v. State, 734 So. 2d 1136, 1137 (Fla. 1st DCA 1999) (stating that a sentencing error must be preserved either by a contemporaneous objection or by a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)). AFFIRMED. BOOTH, WEBSTER a…
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State v. Shinall, 899 So. 2d 1219 (Fla. 1st DCA 2005)…er denying restitution may be reviewed on appeal. A defendant may seek relief from an adverse restitution order under Florida Rule of Criminal Procedure 3.800(b). That rule does not, however, apply to the State of Florida. Compare Fillyaw v. State, 734 So. 2d 1136, 1137 (Fla. 1st DCA 1999) (holding that the defendant failed to preserve a restitution issue by contemporaneously objecting or filing a rule 3.800(b) motion) with Robinson v. State, 757 So. 2d 532, 535 (Fla. 4th DCA 2000) (“The recent amendment does…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Arlecia Michelle Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997)
- Am. Trailer Relocaters, Inc. v. ALL Coast Intermodal Servs., Inc., 719 So. 2d 1249 (Fla. 1st DCA 1998)
- Locke v. State, 719 So. 2d 1249 (Fla. 1st DCA 1998)
- Lorenzana v. State, 717 So. 2d 119 (Fla. 4th DCA 1998)
- Velez v. State, 725 So. 2d 1280 (Fla. 4th DCA 1999)
- Debis Fin. Servs., Inc. v. Castaneda, 725 So. 2d 1280 (Fla. 3d DCA 1999)