Horttor v. State

790 So. 2d 1263, 2001 Fla. App. LEXIS 11253, 26 Fla. L. Weekly Fed. D 1936

Opinion

PER CURIAM.

Appellant claims, on direct appeal, that (i) he was unlawfully sentenced under the Prison Releasee Reoffender Act, and (ii) the Act is unconstitutional according to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm Appellant’s conviction and sentence.

Appellant’s argument that he was unlawfully sentenced was not preserved for appellate review. Stinson v. State, 785 So.2d 759 (Fla. 1st DCA 2001)(error previously considered fundamental could no longer be raised for the first time on appeal, citing amendments to Fla. R.Crim. P. 3.800(b) and Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001)(on motion for rehearing; questions certified to the Florida Supreme Court)).

The Florida Supreme Court has rejected Appellant’s argument that the Act is unconstitutional under Apprendi. McDowell v. State, 789 So.2d 956 (Fla.2001).

Accordingly, we affirm Appellant’s conviction and sentence without prejudice to his right to seek appropriate postconviction relief.

AFFIRMED.

MINER, DAVIS and POLSTON, JJ., concur.