BLAINE EVERETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Blaine Everett appeals from his conviction based on nolo contendere pleas and the sentences imposed. The court affirms, finding that while the sentences may have exceeded the plea agreement cap, Everett failed to raise objections in the trial court, precluding appellate review of the sentencing issue.
The trial court did not err in accepting the pleas, which were properly entered with a factual basis established and voluntariness confirmed. The sentences, while appearing to exceed the plea agreement cap, cannot be challenged on appeal because Everett failed to object in the trial court or move to withdraw the pleas.
[1] A defendant cannot assert sentencing error for the first time on appeal if no objection was made to the trial court.
[2] A defendant must first raise objections to sentencing before the trial court.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Objections to sentencing are to be first raised before the trial court. As Everett made no objection below, nor moved to withdraw the pleas, he cannot assert error for the first time in this appeal.”
Establishes the procedural requirement that sentencing objections must be raised in the trial court before appellate review is available.
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Join FLexlaw to unlock all legal intelligenceIn October and December 1982, four informations were filed against Everett charging attempted burglary, burglary of a structure, grand theft, and burg…
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RYDER, Judge.
Blaine Everett appeals from the trial court’s acceptance of his nolo contendere plea and the sentences imposed thereafter. We affirm.
During October and December 1982, four informations were filed against Everett and others. The informations charged: attempted burglary; burglary of a structure and grand theft; burglary of a dwelling and grand theft; burglary of a structure and grand theft. Everett pleaded guilty to attempted burglary and nolo contendere to the other charges. The pleas were entered pursuant to an agreement which provided that Everett would receive a maximum sentence of three years incarceration or no more than three years imprisonment on each charge, running concurrently one with the other. Everett’s counsel stipulated to a prima facie case on the nolo contendere pleas. In addition, the prosecutor recited a factual basis for all of the charges. After inquiring of Everett, the trial court determined that the pleas were intelligently and voluntarily entered. The court adjudicated Everett guilty of all charges. We find no error in the acceptance of the pleas.
The trial court entered various sentences of imprisonment and probation, the latter including conditions of restitution. The court stated that Everett had a period of ten days in which to contest the announced amounts of restitution.
From the record supplied on appeal, it would appear that the sentences imposed conflict with the plea agreement. The sentences appear to exceed the sentence cap to which the parties agreed, and there does not appear to have been any mention of restitution in the agreement. It is appar ent, however, that no objection was made to the trial court by Everett or his counsel relating to the sentences ordered.
Objections to sentencing are to be first raised before the trial court. As Everett made no objection below, nor moved to withdraw the pleas, he cannot assert error for the first time in this appeal.
The judgment and sentences are therefore affirmed without prejudice to the filing of an appropriate motion pursuant to Florida Rule of Criminal Procedure 3.850. McIntyre v. State, 427 So. 2d 1108 (Fla. 3d DCA 1983); Gaskins v. State, 415 So. 2d 132 (Fla. 5th DCA 1982); Medina v. State, 411 So. 2d 323 (Fla. 5th DCA 1982); Fuller v. State, 406 So. 2d 1212 (Fla.3d DCA 1981). See Castor v. State, 365 So. 2d 701 (Fla.1978).
AFFIRMED.
BOARDMAN, A.C.J,, and GRIMES, J., concur.
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Green v. State, 580 So. 2d 321 (Fla. 1st DCA 1991)…battery and aggravated assault charges or, alternatively, allow him to withdraw his plea. However, appellant failed to bring this matter to the trial court’s attention and has consequently failed to preserve this issue for review. Everett v. State, 442 So. 2d 407, 408 (Fla. 2d DCA 1983). Further, the trial court was under no duty to honor the plea agreement or provide appellant with an opportunity to withdraw his plea because nothing in the record suggests that the trial court was party to the plea negotiati…
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Murray v. State, 444 So. 2d 1154 (Fla. 2d DCA 1984)…ion 947.16, Florida Statutes (Supp. 1982), is not an unconstitutional ex post facto law on its face. The remaining points are raised for the first time on appeal and are therefore not reviewable by this court. Springfield; see also Everett v. State, 442 So. 2d 407 (Fla. 2d DCA 1983). Defendant’s conviction and sentence are AFFIRMED without prejudice to his ability to file a motion for relief under Florida Rule of Criminal Procedure 3.850. BOARDMAN and LEHAN, JJ., concur.…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Gaskins v. State, 415 So. 2d 132 (Fla. 5th DCA 1982)
- Hannah v. State, 406 So. 2d 1212 (Fla. 3d DCA 1981)
- Medina v. State, 411 So. 2d 323 (Fla. 5th DCA 1982)
- Hawkesworth v. Hawkesworth, 427 So. 2d 1108 (Fla. 3d DCA 1983)