Justin O' Neil v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: January 17, 2025
• Docket: 6D2023-0677
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-0677 Lower Tribunal No. 20-1375-F _____________________________

JUSTIN O’NEIL,

Appellant,

v. STATE OF FLORIDA,

Appellee. _____________________________

Appeal from the Circuit Court for Charlotte County. Scott H. Cupp, Judge.

January 17, 2025

MIZE, J.

The errors asserted by Appellant relating to the merits of his conviction were

not preserved below and, therefore, we review them for fundamental error.1 See

Noetzel v. State, 328 So. 3d 933, 945 (Fla. 2021). We find no fundamental error

with respect to these asserted errors and affirm with respect to them without further

discussion.

1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. Appellant also asserts that the trial court committed fundamental error with

respect to his sentence because the trial court entered a written sentence that did not

comport with its oral pronouncement. However, Appellant did not file a motion

under Florida Rule of Criminal Procedure 3.800(b) either prior to filing this appeal

or prior to the filing of his initial brief. A defendant may not raise a sentencing error

as fundamental error on appeal if he has not preserved the issue by either filing a

motion under rule 3.800(b) or by objecting during the sentencing hearing. Jackson

v. State, 983 So. 2d 562, 569 (Fla. 2008). Because Appellant did not do so, we affirm

his sentence. This opinion is without prejudice to Appellant filing any appropriate

motion under Florida Rule of Criminal Procedure 3.800(a).

AFFIRMED.

NARDELLA and WHITE, JJ., concur.

Blair Allen, Public Defender, and Jean M. Henne, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Taylor A. Schell, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED