BRYAN PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Perry appeals a probation revocation from his life sentence, arguing both that the evidence was insufficient to support the revocation and that his re-sentencing to life imprisonment constituted an improper departure without written reasons. The court affirmed the revocation and declined to review the sentencing issue due to lack of preservation.
The court held that the evidence was sufficient to support the probation revocation based on Perry's failure to file required monthly reports and unauthorized change of residence. The court declined to review the sentencing issue because it was not properly preserved at trial, as defense counsel did not object on the ground raised on appeal.
[1] Evidence of failing to file monthly reports and moving without consent is sufficient to support a probation revocation.
[2] A sentencing issue is not preserved for appeal if defense counsel fails to object on the grounds raised on appeal.
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“the evidence adduced at the hearing was sufficient to support the trial court's finding that Perry violated his probation by failing to file his required written monthly reports and by moving from his residence without his probation officer's consent”
Establishes the court's holding on the sufficiency of evidence for probation revocation
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Join FLexlaw to unlock all legal intelligenceIn 1987, Perry was indicted for first-degree murder and pleaded guilty to second-degree murder, receiving a sentence of life imprisonment with all but…
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Perry appeals from the court’s determination that he violated his probation from his life sentence. We affirm.
In 1987, Perry was indicted for first degree murder and later entered a plea to second degree murder. Perry was adjudicated guilty and sentenced to “life imprisonment in the Department of Corrections, with credit for 247 days time served, all except 27 years is suspended, if completes life probation.”
In March 1997, after serving a little more than nine years in prison, Perry was placed on probation. In March 1998, he was charged with violating numerous conditions of his probation.
Perry first contends that the evidence was insufficient to support revocation of his probation. We think the evidence adduced at the hearing was sufficient to support the trial court’s finding that Perry violated his probation by failing to file his required written monthly reports and by moving from his residence without his probation officer’s consent. See Diller v. State, 711 So. 2d 54 (Fla. 5th DCA), rev. denied, 719 So. 2d 892 (Fla.1998); Edwards v. State, 444 So. 2d 581 (Fla. 5th DCA 1984); Chappell v. State, 429 So. 2d 84 (Fla. 5th DCA 1983).
Next Perry argues that his life sentence must be reversed. Perry contends that he agreed to a two-cell upward departure sentence (a range of 22-27 years in prison) when he entered into his plea agreement. Following the revocation of probation, Perry argues that the court was limited to a one-cell bump up from that level (a range of 27 to 40 years). Thus the life sentence he received was a departure which must be reversed because no written reasons for departure were given.
The state argues this issue was not preserved because defense counsel did not object on the ground raised on appeal. Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998), rev. granted, 728 So. 2d 203 (Fla.1999). Since we are bound by Maddox, we cannot review the sentencing issue as part of the direct appeal. Nor should we consider this issue on appeal in the guise of ineffective assistance of counsel. See Seccia v. State, 720 So. 2d 580 (Fla. 1st DCA 1998), rev. granted, 727 So. 2d 910 (Fla.1999).
AFFIRMED.
COBB and GRIFFIN, JJ., concur.
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…t DCA), review granted, 719 So. 2d 893 (Fla.1998) (Case No. 93,163) Costs Error Parks v. State, 719 So. 2d 1212 (Fla. 5th DCA 1998), review granted, 727 So. 2d 909 (Fla.1999) (Case No. 94,286) Sentence Exceeding Statutory Maximum Perry v. State, 744 So. 2d 1199, 1200 (Fla. 5th DCA 1999), review granted, No 97,119, 761 So. 2d 330 (Fla. Feb. 21, 2000) Departure Sentence Rider v. State, 724 So. 2d 617 (Fla. 5th DCA 1998), review granted, 735 So. 2d 1287 (Fla.1999) (Case No. 95,060) Deviation from Oral Pron…
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Perry v. State, 761 So. 2d 317 (Fla. 2000)…PER CURIAM. We have for review the decision in Perry v. State, 744 So. 2d 1199 (Fla. 5th DCA 1999), in which the Fifth District Court of Appeal cited as controlling authority its opinion in Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998), approved in part, disapproved in part, 760 So. 2d 89 (Fla.2000). We have jurisdiction…
Authorities Cited
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Seccia v. State, 720 So. 2d 580 (Fla. 1st DCA 1998)
- Diller v. State, 711 So. 2d 54 (Fla. 5th DCA 1998)
- Sand Dollar Villas Dev. Corp., Inc. v. Sand Dollar Villas Condo. Ass'n, Inc., 429 So. 2d 84 (Fla. 4th DCA 1983)
- Chappell v. State, 429 So. 2d 84 (Fla. 5th DCA 1983)
- Edwards v. State, 444 So. 2d 581 (Fla. 5th DCA 1984)