Opinion
No. 1D98-552.
Opinion filed May 1, 2000. CORRECTED OPINION
An appeal from the Circuit Court for Madison County, James Roy Bean, Judge.
Nancy A. Daniels, Public Defender; David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Appellee.
Ronnie Edwards appeals a sentence departing from the sentencing guidelines which was entered following his conviction for aggravated assault. Appellant argues that the trial court erred because (i) no written explanation for the departure sentence was provided contrary to section 921.001(6), Florida Statutes (1997) and (ii) the reasons for departure given orally at the sentencing hearing are an insufficient basis for a departure sentence as a matter of law. Because the issues raised on appeal were not preserved for review, we affirm.
Although we agree with appellant that the trial court erred in failing to provide written reasons for the upward departure contemporaneously with the sentencing order as required by section 921.001(6), see Donaldson v. State, 722 So.2d 177, 188-89 (Fla. 1998), this sentencing error was not brought to the attention of the trial court by motion pursuant to rule 3.800, Florida Rules of Criminal Procedure. Accordingly, the asserted error has not been preserved. See § 924.051(3), Fla. Stat. (1997); Fla.R.App.P. 9.140(d); Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998). Further, the failure to file written reasons cannot be said to render the sentence "illegal," since it does not exceed a statutory or constitutional limitation. See State v. Mancino, 714 So.2d 429 (Fla. 1998). Because the sentence is not illegal, and because no argument of fundamental error is raised on appeal with respect to the trial court's failure to file written reasons, see Perry v. State, 714 So.2d 563, 564 (Fla. 1st DCA 1997), this error may not be raised on appeal. See Butler v. State, 723 So.2d 865 (Fla. 1st DCA 1998), rev. granted, 735 So.2d 1283 (Fla. 1999) (the trial court's failure to file written reasons for imposing a departure sentence was never presented to the trial court and hence is not preserved); Edmondson v. State, 745 So.2d 533 (Fla. 1st DCA 1999); see also Jordan v. State, 728 So.2d 748 (Fla. 3d DCA 1998), rev. granted, 735 So.2d 1285 (Fla. 1999) (trial court's untimely filing of written departure reasons would not be considered on appeal because the issue was not raised in a motion filed under rule 3.800(b)); but see Hinkle v. State, 737 So.2d 1152 (Fla. 2d DCA 1999).
In Davis v. State, 661 So.2d 1193 (Fla. 1995), the supreme court held that a departure sentence for which written reasons were not provided did not constitute an illegal sentence nor was it fundamental error. The supreme court has since explained that an "illegal sentence" is not only one which exceeds the statutory maximum, but is also one which "patently fails to comport with statutory or constitutional limitations." State v. Mancino, 714 So.2d at 433. We do not view the supreme court's refinement of the definition of illegal sentence in Mancino as reversing the holding of Davis that a departure sentence for which written reasons are not provided is not an illegal sentence.
With respect to the reasons orally pronounced at sentencing, without reaching the question of whether the stated reasons constituted a sufficient basis for a departure sentence, we find that the appellant also failed to timely bring to the attention of the trial court any errors related to the stated reasons for departure. See rule 9.140(d), Fla.R.App.P. At the sentencing hearing appellant did argue that the reasons presented by the state did not constitute a valid basis for a departure sentence. Nevertheless, when the trial court announced the sentence and explained the factors supporting a guideline departure, appellant made no objection to the departure sentence or the stated factors, and further, appellant did not raise any sentencing errors in a post-trial motion. Because appellant has not preserved this issue for appellate review, id., and no argument of fundamental error is raised on appeal, see Perry, 714 So.2d at 564, the asserted error in imposing departure sentence under the facts of the instant case may not be remedied on direct appeal. Nelson, 719 So.2d at 1231-32.
AFFIRMED.
BARFIELD, C.J. AND PADOVANO, J., CONCUR.