DONALD KEITH ROLLING, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A new legal argument raised for the first time in a motion for rehearing is improper and will not be entertained.
The defendant filed a motion for rehearing after the court affirmed a prior order denying his motion to correct an illegal sentence. The defendant rai…
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ON MOTION FOR REHEARING
On January 20, 2016, this Court affirmed the trial court’s order denying Donald K. Rolling’s (“Rolling”) 3.800(a) Motion to Correct Illegal Sentence as successive, although for reasons other than those stated by the trial court. Rolling v. State, 218 So.3d 911, 2016 WL 231362 (Fla. 3d DCA Jan. 20, 2016). Rolling has filed a motion for rehearing pursuant to Florida Rule of Appellate Procedure 9.330. We deny the motion for rehearing.
Rolling asserts that the Information was insufficient to charge him with “actual possession” of a firearm, and that it is a violation of due process to convict Rolling of a crime not charged. That argument, however, was never raised by Rolling in either his direct appeal or in any of his 3.800(a) motions. See Sarmiento v. State, 371 So.2d 1047, 1053 (Fla. 3d DCA 1979); Cleveland v. State, 887 So.2d 362, 364 (Fla. 5th DCA 2004). A new issue raised for the first time in a motion for rehearing is improper under Rule 9.330, and this Court will not entertain this new argument on rehearing, Cleveland, 887 So.2d at 364 (“No new ground or position may be assumed in a petition for rehearing.... This court need not entertain new argument or consider additional authority cited in support thereof,”).
We note that any alleged defect in the charging document could have been corrected if a timely objection had been made. See Martinez v. State, 169 So.3d 170, 172 (Fla. 4th DCA 2015). Consequently, Rolling’s failure to object to a technical deficiency in the charging document prior to the jury’s verdict constitutes a waiver. Bradley v. State, 3 So.3d 1168, 1171 (Fla. 2009); Connolly v. State, 172 So.3d 893, 902 (Fla. 3d DCA 2015).
Motion for Rehearing Denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ivory Lee Robinson v. State, 215 So. 3d 1262 (Fla. 1st DCA 2017)….800(a). The Florida Supreme Court recognizes that a defendant can waive the failure to precisely charge grounds for a mandatory minimum under the “10-20-Life” law. See Martinez; Nelson v. State, 191 So. 3d 950 (Fla. 4th DCA 2016); Rolling v. State, 215 So. 3d 70, 2016 WL 4723682 (Fla. 3rd DCA Aug. 17, 2016); Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015); Bradley v. State, 3 So. 3d 1168 (Fla. 2009). The technical-defect challenge raised by the defendant is also contrary to the “Criminal Appeal Reform…
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Jackson v. State, 245 So. 3d 929 (Fla. 3d DCA 2018)…claim of ineffective assistance of trial counsel in an appropriate Rule 3.850 motion. See State v. Smith, No. SC17-576, 241 So. 3d 53, 2018 WL 1755386 (Fla. April 12, 2018). See also Partin v. State, 82 So. 3d 31, 39 (Fla. 2011) ; Rolling v. State, 215 So. 3d 70 (Fla. 3d DCA 2016).…
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Broughton v. State (Fla. 3d DCA 2020)…335 (Fla. 3d DCA 2017) (As “the error was a scrivener’s error, not judicial error, which when corrected will not affect the defendant’s sentence . . . , the judgment may be corrected without conducting a new sentencing hearing.”); Rolling v. State, 215 So. 3d 70 (Fla. 3d DCA 2016) (The “failure to object to a technical deficiency in the charging document prior to the jury’s verdict constitutes a waiver.”) (citations omitted); Delgado v. State, 43 So. 3d 132, 134-35 (Fla. 3d DCA 2010) (finding information th…
Authorities Cited
- Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004)
- Sarmiento v. State, 371 So. 2d 1047 (Fla. 3d DCA 1979)
- Bradley v. State, 3 So. 3d 1168 (Fla. 2009)
- Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)
- Martinez v. State, 169 So. 3d 170 (Fla. 4th DCA 2015)
- Rolling v. State, 218 So. 3d 911 (Fla. 3d DCA 2016)