Perry v. StatePerry v. State
- Reporters:
- ,
- Before:
- Kahn, Barfield, Joanos
Appellant Thomas Perry seeks review of an upward departure sentence. We affirm because the argument Perry makes in his appellate brief was not preserved for review.
The case below involved revocation of an earlier probationary term imposed in several cases. At sentencing, the guideline score sheets scored Perry at 22 months state prison. The State sought an upward departure and argued to the trial court that at the time he was placed on probation, Perry had misrepresented his identity, and had the State been aware of Perry‘s record under his correct name, he would have qualified for a more severe sentence. At the sentencing hearing, the trial court indicated he was imposing a departure sentence because Perry had engaged in a fraud upon the court by using a false name. In the written order, entered later, the court stated two reasons for the departure sentence: (1) Perry had perpetrated a fraud on the court by giving a false name when he originally appeared for sentencing before a previous judge in these cases; (2) Perry had showed no remorse for his criminal activity.
On appeal, Perry challenges both reasons as legally insufficient for departure. An appellate court is obliged to uphold a departure sentence if one of the reasons for the departure is valid, even if the remaining departure reasons are invalid. See
Appellant argues vigorously that the trial court was without authority to depart based upon appellant‘s use of an alias in the original sentencing proceeding. Perry cites Barr v. State, 674 So.2d 628 (Fla.1996) and State v. Varner, 616 So.2d 988 (Fla.1993). In Varner, the Supreme Court held that “departure may not be based on conduct that could have, but has not yet, resulted in a criminal conviction.” 616 So.2d at 988-989. Were we to reach the merits, appellant‘s reliance upon these two cases is questionable because these cases were decided under the pre-1994 guidelines and the case law construing those guidelines. Specifically,
Reasons for departing from the recommended guideline sentence shall not include circumstances or factors relating to prior arrests without conviction or charged offenses for which convictions have not been obtained. (emphasis added).
In Capers v. State, the Supreme Court noted that “the 1994 sentencing guidelines supersede existing case law that conflicts with the purpose or principle of the new guidelines.”
At sentencing, the trial court stated very clearly that he intended to depart because defendant had used an alias in the earlier cases and thus had misled the State and the court, and as a result, had received more lenient treatment. In response to the court‘s pronouncement of his departure rationale, defense counsel stated:
It‘s necessary for me at this time to object to the departure, for the reasons stated, for the record.
Counsel never apprised the court of the legal basis of her objection, nor did counsel refer the court to Varner or Barr. Moreover, upon receipt of the written order, counsel did not seek to preserve the point by filing a motion to correct the sentence pursuant to
Although Perry argues in his brief that the foregoing objection clearly apprised the court of its now-asserted basis, we disagree. “An appeal cannot be taken from a judgement or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.”
The sentencing error raised on appeal is unpreserved. Appellant does not argue that the error is fundamental. Accordingly, the conviction and sentence is AFFIRMED.
BARFIELD, C.J., and JOANOS, J., concur.