JOHN YANCY NUNEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed trafficking and drug possession convictions, finding no error in denial of judgment of acquittal motion, but identified unpreserved sentencing error regarding erroneous habitual felony offender designations that could be addressed in postconviction motion.
The trial court did not err in denying the motion for judgment of acquittal, and although the written sentencing order contained erroneous habitual felony offender designations, this issue was not preserved for direct appeal.
[1] Sentencing error designating habitual felony offender status not preserved by motion under Florida Rule of Criminal Procedure 3.800(b) cannot be addressed on direct appea…
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Join FLexlaw to unlock all legal intelligenceNunez was convicted of trafficking in amphetamine, trafficking in illegal drugs, and possession of a controlled substance. The written sentencing orde…
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WALLACE, Judge.
In this appeal from convictions for trafficking in amphetamine, trafficking in illegal drugs, and possession of a controlled substance, appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), suggesting the possibility of legal error in the trial court’s denial of Nunez’s motion for a judgment of acquittal. We have carefully reviewed the record and find no error in the issue suggested by counsel. However, we do detect error in the sentence imposed.
Although Nunez’s sentence was a lawful sentence imposed within the Criminal Punishment Code, the written sentencing order reflects that the trial court designated Nunez’s sentences for trafficking in amphetamine and trafficking in illegal drugs as habitual felony offender sentences. The State never sought habitual felony offender sentences for these offenses, the trial court did not include the designations in its oral pronouncement, and the designations appear to be scrivener’s errors. The State correctly concedes that Nunez’s written judgment erroneously reflects habitual felony offender sentences for the two trafficking offenses. However, Nunez did not preserve this issue for appellate review by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So. 2d 452 (Fla.2003). Therefore, we may not address this sentencing error on direct appeal. Accordingly, we affirm Nunez’s judgments and sentences without prejudice to any right Nunez may have to file an appropriate postconviction motion addressing the erroneous designations.
Affirmed.
STRINGER and CANADY, JJ., Concur.
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Citator
Cited By
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Brown v. State, 960 So. 2d 905 (Fla. 2d DCA 2007)…ersed in part, and remanded. DAVIS and LaROSE, JJ., Concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . If this had been only a sentencing error, the issue would not have been preserved. See Nunez v. State, 912 So. 2d 693, 693 (Fla. 2d DCA 2005) (holding unpreserved sentencing error, even if fundamental error, must be preserved through a timely filed Florida Rule of Criminal Procedure 3.800(b) motion).…
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Nunez v. State, 988 So. 2d 695 (Fla. 2d DCA 2008)…eizure, Mr. Nunez was found guilty by a jury of trafficking in amphetamine (count one), trafficking in illegal drugs (count two), and possession of a controlled substance (count three). After his sentence was corrected on appeal, see Nunez v. State, 912 So. 2d 693 (Fla. 2d DCA 2005), Mr. Nunez received concurrent sentences of seven years’ prison on count one, twenty-five years’ prison on count two, and five years’ prison on count three. Mr. Nunez, through counsel, then filed this timely rule 3.850 motion. Mr…
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Childs v. State, 941 So. 2d 388 (Fla. 2d DCA 2005)…PER CURIAM. Affirmed. See Nunez v. State, 912 So. 2d 693 (Fla. 2d DCA 2005); Adams v. State, 774 So. 2d 941 (Fla. 2d DCA 2001); Adlington v. State, 840 So. 2d 354 (Fla. 4th DCA), review denied, 859 So. 2d 513 (Fla.2003); State v. Waldron, 835 So. 2d 1217 (Fla. 5th DCA 2003); Paul v. State, 830 So. 2d 953…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Brannon v. State, 850 So. 2d 452 (Fla. 2003)