STATE OF FLORIDA, APPELLANT,
v.
FREDERICK CURRILLY, APPELLEE
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The court held that the trial court erred in withholding adjudication of guilt after revoking probation, but the error was not preserved for appeal.
[1] A prosecutor's generic objection, without stating a legal basis, does not adequately preserve an issue for appellate review.
[2] An issue is preserved for appellate review only if it was timely raised, ruled upon by the trial court, and sufficiently precise to apprise the trial court of the relief…
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Join FLexlaw to unlock all legal intelligenceAppellee pleaded guilty to child abuse and was placed on probation with adjudication withheld. After a probation violation, the trial court again with…
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The State appeals the trial court’s order revoking Appellee’s probation and sentencing him to six months in the county jail, but withholding adjudication of guilt.1 We agree with the State that the trial court erred in withholding adjudication of guilt based on the clear and unambiguous language of section 948.06(2)(b), Florida Statutes (2011).2 However, we are compelled to affirm because the prosecutor failed to adequately preserve the error for appellate review.
Appellee pled guilty to child abuse. Adjudication was withheld and Appellee was placed on probation. Appellee was charged with violating his probation. He admitted the violation with the understanding that the “disposition will be determined by the court.”
At sentencing, counsel for Appellee requested a lenient sentence and told the trial judge that she had the discretion to continue to withhold adjudication of guilt. The prosecutor did not rebut this erroneous legal argument and simply requested that the judge adjudicate Appellee guilty and sentence him to three years’ imprisonment. After an off-the-record discussion, the judge sentenced Appellee to six months in the county jail and announced that she would not alter the previous withhold of adjudication. The prosecutor objected to the sentence, saying only, ‘Your Honor, just for the record, the State would object to the withhold.”
An issue is considered preserved for appellate review if the “issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and ... the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” § 924.051(l)(b), Florida Statutes (2011) (emphasis added); see also Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (“First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, ‘[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’ ”)(fírst emphasis added and second emphasis in original). Here, the prosecutor’s generic “for-the-record” objection did not apprise the judge of the legal basis for the error and, thus, did not adequately preserve the issue for appellate review.
We reject the State’s argument that the legal basis for the prosecutor’s objection is apparent from the argument presented below; at no point during the sentencing hearing did the prosecutor argue that it is improper to withhold adjudication of guilt after a revocation of probation, nor did the State ever mention section 948.06(2)(b).3 Likewise, we reject *1246the State’s argument that the error in this case is fundamental error that can be raised on appeal despite the lack of preservation below because the error is not “basic to the judicial decision under review and equivalent to a denial of due process.” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)); cf. State v. Calvert, 15 So.3d 946, 950 (Fla. 4th DCA 2009) (Warner, J. concurring specially) (stating that the erroneous withholding of adjudication without the required written reasons creates an unauthorized judgment, but not an illegal judgment, and does not appear to be fundamental error under Florida law).
For these reasons, the order on appeal is AFFIRMED.
ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.
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HAM v. Nationstar Mortg., LLC, 164 So. 3d 714 (Fla. 1st DCA 2015)…ellate review, a contemporaneous objection on the specific legal ground raised on appeal must be made in the trial proceedings, and the objecting party must obtain a ruling by the trial court for the appellate court to review. See State v. Currilly, 126 So. 3d 1244,1245 (Fla. 1st DCA 2013). The preservation rule applies in both criminal and civil cases. See Universal Ins. Co. of N. Am. v. Warfel,. 82 So. 3d 47, 64 (Fla.2012) (applying rule in civil proceedings); Aills v. Boemi, 29 So. 3d 1105 (Fla.2010) (same)…
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Morales v. State, 170 So. 3d 63 (Fla. 1st DCA 2015)…einhorst v. State, 412 So. 2d 332, 338 (Fla.1982) (holding that “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as the legal ground for the objection, exception, or motion below”); State v. Currilly, 126 So. 3d 1244, 1245 (Fla. 1st DCA 2013) (holding that in order to adequately preserve an issue for appeal, an argument must be “sufficiently precise so as to fairly apprise the trial court of the relief sought and the grounds therefor”). See also Fla. R.Crim. P.…
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State v. Countryman, 132 So. 3d 922 (Fla. 1st DCA 2014)…ansaction form, but withholding adjudication of guilt and placing appellee on probation for four months with the special condition that he serve those four months in the county jail. Consistent with this court’s recent decision in State v. Currilly, 126 So. 3d 1244 (Fla. 1st DCA 2013), we agree with the state that the trial court erred in withholding adjudication of guilt based on the clear and unambiguous language of section 948.06(2)(b) & (e), Florida Statutes (2012). Unlike in Currilly, we find the prosecut…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Harrell v. State, 894 So. 2d 935 (Fla. 2005)
- Hopkins v. State, 632 So. 2d 1372 (Fla. 1994)
- Pena v. State, 829 So. 2d 289 (Fla. 2d DCA 2002)
- State v. Tabias Calvert, 15 So. 3d 946 (Fla. 4th DCA 2009)
- Balkom v. State, 15 So. 3d 946 (Fla. 1st DCA 2009)