State v. Rodriguez

Full title: THE STATE OF FLORIDA, APPELLANT, v. PEDRO RODRIGUEZ, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: May 15, 1996

673 So. 2d 187 (Fla. Dist. Ct. App. 1996)

Opinion

No. 96-358.

May 15, 1996.

Appeal from the Circuit Court, Dade County, Robert N. Scola, Jr., J.

Robert A. Butterworth, Attorney General and Sandra S. Jaggard, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellee.

Before SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ.

SCHWARTZ, Chief Judge.

While the evidence presented at the sentencing hearing was arguably — though curably — insufficient under the Barbera¹ — Herrin² rule, compare State v. Gordon, 645 So.2d 140 (Fla. 3d DCA 1994), review denied, 652 So.2d 816 (Fla. 1995) with State v. Porter, 659 So.2d 328 (Fla. 3d DCA 1995), the downward departure sentence imposed below is affirmed because the state made no contemporaneous claim to that effect and thus did not preserve the issue. See Evans v. State, 619 So.2d 520 (Fla. 1st DCA 1993); Santini v. State, 404 So.2d 843 (Fla. 5th DCA 1981); Pinder v. State, 396 So.2d 272 (Fla. 3d DCA 1981); State v. Hinton, 305 So.2d 804, 808 n. 2 (Fla. 4th DCA 1975).

1 Barbera v. State, 505 So.2d 413 (Fla. 1987).

2 Herrin v. State, 505 So.2d 920 (Fla. 1990).