JUSTIN O' NEIL
v.
STATE OF FLORIDA

Fla. 6th DCA | 2025-01-17
No. 6D2023-0677
336 So. 3d 211 Florida District Court of Appeal, Sixth District (2025) Negative Treatment
Cited by 9 cases

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Synopsis

An appellant challenged his conviction and sentence on appeal, but the conviction-related errors were not preserved for appellate review and thus were reviewed for fundamental error. The court found no fundamental error regarding the conviction and affirmed, while also affirming the sentence because the appellant failed to comply with the procedural requirement of filing a motion under Florida Rule of Criminal Procedure 3.800(b).

Holding

The court affirmed both the conviction and sentence. The conviction-related errors showed no fundamental error when reviewed under the fundamental error standard. The sentencing error was not preserved for appellate review because the appellant failed to file a Rule 3.800(b) motion or object at sentencing, and therefore cannot be raised as fundamental error on appeal.

Headnotes

[1] A sentencing error cannot be raised as fundamental error on appeal unless the defendant has preserved the issue by filing a motion under Florida Rule of Criminal Procedur…

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Facts & Procedural History

The appellant was convicted and sentenced in the Circuit Court for Charlotte County. The appellant did not preserve sentencing error through either a …

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Topics
Oral Pronouncement Vs. Written Sentence Fundamental Error Review Written Sentence Oral Pronouncement

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Opinion of the Court

Appeal from the Circuit Court for Charlotte County.

Scott H. Cupp, Judge.

January 17, 2025 MIZE, J.

The errors asserted by Appellant relating to the merits of his conviction were not preserved below and, therefore, we review them for fundamental error.1 See Noetzel v. State, 328 So. 3d 933, 945 (Fla. 2021). We find no fundamental error with respect to these asserted errors and affirm with respect to them without further discussion.

Appellant also asserts that the trial court committed fundamental error with respect to his sentence because the trial court entered a written sentence that did not comport with its oral pronouncement. However, Appellant did not file a motion under Florida Rule of Criminal Procedure 3.800(b) either prior to filing this appeal or prior to the filing of his initial brief. A defendant may not raise a sentencing error as fundamental error on appeal if he has not preserved the issue by either filing a motion under rule 3.800(b) or by objecting during the sentencing hearing. Jackson v. State, 983 So. 2d 562, 569 (Fla. 2008). Because Appellant did not do so, we affirm his sentence. This opinion is without prejudice to Appellant filing any appropriate motion under Florida Rule of Criminal Procedure 3.800(a).

AFFIRMED.

NARDELLA and WHITE, JJ., concur. Blair Allen, Public Defender, and Jean M. Henne, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Taylor A. Schell, Assistant Attorney General, Tampa, for Appellee.

Footnotes
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.

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Citator

Cited By

  • Reynaldo Figueroa-Sanabria v. State, 366 So. 3d 1035 (Fla. 2023)
    …y stage that may significantly affect the outcome of the proceedings.” Id. at 968 . In most cases, indigent defendants are also entitled to counsel by statute. See § 27.40, Fla. Stat.; § 27.51, Fla. Stat. - 38 - [their] mitigation.’ ” Bell v. State, 336 So. 3d 211 , 217 (Fla. 2022) (alteration in original) (quoting Boyd v. State, 910 So. 2d 167, 189 (Fla. 2005)). Therefore, “regardless of ‘[w]hether [the] defendant is represented by counsel or is proceeding pro se, the defendant has the right to choose what e…
  • Orme v. State, 361 So. 3d 842 (Fla. 2023)
  • Sparre v. State, 391 So. 3d 404 (Fla. 2025)
    …(b)(1), Fla. Const. 2 2. Spencer v. State, 615 So. 2d 688 (Fla. 1993). 3 3. Under our precedent, even in cases of a mitigation waiver, the circuit court maintains the “responsibility to consider mitigating evidence in the record.” Bell v. State, 336 So. 3d 211, 217 (Fla. 2022) (citing Sparre v. State, 164 So. 3d 1183, 1196 (Fla. 2015)). 4 4. Jacinta M. Gau, Racialized Impacts of Death Disqualification in Duval County, Florida (2021) (considering data from 12 capital cases in Duval County from 2010 to 20…

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