Summary
In Butler, I find the district court's conclusion that Butler was "not prejudiced" by the error undermines this Court's determination that the error was fundamental.
Summary of this case from Maddox v. StateOpinion
No. 96-4448.
Opinion filed November 30, 1998.
An appeal from the Circuit Court for Madison County. Paul S. Bryan, Judge.
Nancy A. Daniels, Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; J. Ray Poole, Assistant Attorney General, Tallahassee, for Appellee.
In this direct criminal appeal, the sole issue presented is whether appellant is entitled to be resentenced pursuant to the sentencing guidelines because the trial court failed timely to file written reasons justifying its upward departure sentence. It is undisputed that the trial court did explain on the record at the sentencing hearing why it was imposing an upward departure sentence. Although appellant's counsel objected to the reasons announced by the trial court during the sentencing hearing, appellant does not challenge the sufficiency of those reasons on appeal. Appellant did not object in the trial court to the failure timely to file written reasons justifying the departure sentence imposed. Because the issue raised was never presented to the trial court, it was not preserved. In addition, appellant has failed to demonstrate how he has been prejudiced by the failure timely to file written reasons. To the extent that error occurred, it is not "fundamental." Davis v. State, 661 So.2d 1193 (Fla. 1995). Accordingly, we affirm. § 924.051(3), Fla. Stat. (Supp. 1996). See Weiss v. State, 23 Fla. L. Weekly D2380 (Fla. 3d DCA Oct. 21, 1998); Jordan v. State, 23 Fla. L. Weekly D2130 (Fla. 3d DCA Sept. 16, 1998).
AFFIRMED.
WOLF and LAWRENCE, JJ., CONCUR.