Bennie Leonard Massey v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: March 3, 2016
• Docket: 15-2588
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

BENNIE LEONARD MASSEY, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D15-2588

STATE OF FLORIDA,

Appellee.

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Opinion filed March 4, 2016.

An appeal from the Circuit Court for Duval County. Angela Cox, Judge.

Nancy A. Daniels, Public Defender, and Mark Graham Hanson, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

This appeal is brought under Anders v. California, 386 U.S. 738 (1967).

Having reviewed the record on appeal, we find no preserved error in either Appellant’s judgment or sentence warranting reversal. Accordingly, we affirm.

However, we note that Anders counsel pointed out a potentially meritorious but

unpreserved cost sentencing error in the initial Anders brief, but failed to take steps

to either correct or preserve the error by filing a motion under Florida Rule of

Criminal Procedure 3.800(b)(2) before this case was perfected and sent to the panel

for review. Accordingly, while we affirm Appellant’s judgment and sentence, we do

so without prejudice to Appellant’s right to seek timely collateral relief. See Ramos

v. State, 156 So. 3d 591, 592 (Fla. 1st DCA 2015) (affirming unpreserved sentencing

error without prejudice to defendant’s right to file appropriate post-conviction

motion). See also Collando-Pena v. State, 141 So. 3d 229, 230-32 (Fla. 1st DCA

2014).

It is so ordered.

LEWIS, OSTERHAUS, and KELSEY, JJ., CONCUR.