STATE OF FLORIDA, APPELLANT,
v.
JAMES CLARK, APPELLEE
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The court held that the State's argument regarding the invalidity of the downward departure sentence reasons was not preserved for appeal because it was not raised on the same grounds in the trial court. Even if preserved, the State failed to show all reasons for departure were invalid.
[1] A general objection to the imposition of a downward departure sentence is insufficient to preserve for appellate review an argument challenging the validity of the depart…
[2] Sentencing errors may not be raised on appeal unless first brought to the attention of the trial court at the time of sentencing or through a Rule 3.800(b) motion.
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Join FLexlaw to unlock all legal intelligenceThe trial court imposed a downward departure sentence after finding the defendant violated probation. The State appealed this sentence, arguing the re…
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PER CURIAM.
Upon finding that the Defendant had violated his probation, the trial court imposed a downward departure sentence. The State appeals, arguing that the reasons given for the departure were invalid. We affirm.
Sentencing errors may not be raised on appeal unless first brought to the attention of the trial court at the time of sentencing or through a Rule 3.800(b) motion. See Fla. RApp. P. 9.140(d). The State was prohibited by rule from filing a Rule 3.800(b) motion because it is not advocating correction of a scrivener’s error or an error that would benefit the defendant. See Fla. R.Crim. P. 3.800(b). At sentencing, while the State objected to the imposition of a downward departure sentence, it 'did not object on the same grounds it argues here, i.e., that the specific reasons given for departing were invalid. To the extent the State argues a different legal argument than it relied upon at trial, the State’s argument is not preserved for review. See Tillman v. State, 471 So. 2d 32 (Fla.1985).
We disagree with the Second District’s opinion in State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000), to the extent it states that a general objection to the imposition of a downward departure sentence is sufficient to preserve an appellate argument challenging the validity of the departure reason and the sufficiency of the evidence supporting the departure reason. We certify conflict with Barnes on this point.
Even so, on the merits, the State has failed to carry its burden on appeal by showing that each of the three reasons given for departure in this case was invalid. See § 921.001(6), Fla. Stat. (1999) (stating that a departure sentence must be upheld if any of the reasons given by the trial court are found to be valid); E & I, Inc. v. Excavators, Inc., 697 So. 2d 545, 547 (Fla. 4th DCA 1997) (stating that the appellant has the burden of making “any reversible error clearly, definitely, and fully appear”). Accordingly, we affirm the trial court’s sentencing order. AFFIRMED.
GUNTHER, FARMER and GROSS, JJ., concur.
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State v. Hamner, 816 So. 2d 810 (Fla. 5th DCA 2002)…m the sentence was an illegal downward departure without adequate reasons where the state did not object when the trial judge failed to orally announce reasons at sentencing and when the judge failed to enter [*813] written reasons); State v. Clark, 770 So. 2d 237 (Fla. 4th DCA 2000) (issue of whether specific reasons given for imposition of downward departure sentence were invalid not preserved by state where at sentencing state did not object on same grounds argued on appeal). AFFIRMED. COBB and PALMER, J…
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State v. Carlson, 911 So. 2d 234 (Fla. 2d DCA 2005)…ection of the sentencing error would benefit the defendant or to correct a scrivener’s error.” Fla. R.Crim. P. 3.800(b). Correction of a downward departure sentence neither corrects a scrivener’s error nor benefits the defendant. See State v. Clark, 770 So. 2d 237 (Fla. 4th DCA 2000); State v. Henriquez, 717 So. 2d 1087, 1088 n. 3 (Fla. 3d DCA 1998). Thus, the State could not preserve this error for review using rule 3.800(b). At the hearing on Carlson’s motion to mitigate sentence, the State argued that no…
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J.J.T. v. State, 810 So. 2d 548 (Fla. 1st DCA 2002)…to provide reasons for the deviation from the DJJ recommendation. Further, J.J.T. made no legal argument to the trial court which would have presented to the court the statutory requirement for stating reasons for the deviation. See State v. Clark, 770 So. 2d 237 (Fla. 4th DCA 2000), rev. granted, 789 So. 2d 398 (Fla.2001)(Table, No. SC00-2441). Accordingly, we hold that J.J.T. has failed to preserve the error asserted on appeal. § 924.051, Fla. Stat. (1999); T.G., 800 So. 2d at 211. J.J.T. does not argue th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- State v. Barnes, 753 So. 2d 605 (Fla. 2d DCA 2000)
- Widmer v. State, 697 So. 2d 545 (Fla. 1st DCA 1997)