Kiely v. State

District Court of Appeal of Florida

Kiely v. State

884 So. 2d 95, 2004 Fla. App. LEXIS 5252, 2004 WL 813290

CourtDistrict Court of Appeal of Florida

DecidedApril 16, 2004

DocketNo. 2D03-2127

StatusPublished

Cited by1 cases

This text of 884 So. 2d 95 (Kiely v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kiely v. State, 884 So. 2d 95, 2004 Fla. App. LEXIS 5252, 2004 WL 813290 (Fla. Ct. App. 2004).

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Opinion

SILBERMAN, Judge.

In this belated appeal, William Kiely challenges his corrected sentences in five cases.¹ We affirm in all respects but write to address Kiely’s arguments that the trial court improperly imposed corrected sentences (1) without Kiely being present; (2) by departing from the sentencing guidelines without giving reasons for the departures; and (3) by departing from the sentencing guidelines in violation of Kiely’s plea agreement.

First, Kiely did not have a right to be present at the hearing at which his sentences were corrected because the trial court merely performed the ministerial function of imposing sentences that had already been pronounced. See Smith v. State, 870 So.2d 61, 63, 2003 WL 22514546, 2003 WL 22514609 (Fla. 2d DCA Nov. 7, 2003); Windisch v. State, 709 So.2d 606 (Fla. 2d DCA 1998).

Second, the issue of whether the trial court erred by not giving reasons for departure sentences as required by section 921.0016(c), Florida Statutes (1997), has not been preserved for appeal. Kiely’s trial counsel did not object to the sentences at the time of sentencing, and Kiely did not raise this issue in a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). See § 924.051, Fla. Stat. (1997); Fla. R.App. P. 9.140(b)(2)(A)(ii)(d); Maddox v. State, 760 So.2d 89 (Fla.2000); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997).

Third, the issue of whether the trial court’s departure from the sentencing guidelines violated the plea agreement also has not been preserved for appeal. Kiely did not file a motion to withdraw his plea as required by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(b). See Wallace v. State, 835 So.2d 1281, 1282 (Fla. 2d DCA 2003).

Accordingly we affirm without prejudice to any right Kiely may have to file a timely, non-successive, facially sufficient motion for ineffective assistance of trial counsel or a timely, facially sufficient petition alleging ineffective assistance of ap[97]*97pellate counsel.²

Affirmed.

NORTHCUTT and SALCINES, JJ., Concur.

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SILBERMAN, Judge.

In this belated appeal, William Kiely challenges his corrected sentences in five cases.¹ We affirm in all respects but write to address Kiely’s arguments that the trial court improperly imposed corrected sentences (1) without Kiely being present; (2) by departing from the sentencing guidelines without giving reasons for the departures; and (3) by departing from the sentencing guidelines in violation of Kiely’s plea agreement.

First, Kiely did not have a right to be present at the hearing at which his sentences were corrected because the trial court merely performed the ministerial function of imposing sentences that had already been pronounced. See Smith v. State, 870 So.2d 61, 63, 2003 WL 22514546, 2003 WL 22514609 (Fla. 2d DCA Nov. 7, 2003); Windisch v. State, 709 So.2d 606 (Fla. 2d DCA 1998).

Second, the issue of whether the trial court erred by not giving reasons for departure sentences as required by section 921.0016(c), Florida Statutes (1997), has not been preserved for appeal. Kiely’s trial counsel did not object to the sentences at the time of sentencing, and Kiely did not raise this issue in a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). See § 924.051, Fla. Stat. (1997); Fla. R.App. P. 9.140(b)(2)(A)(ii)(d); Maddox v. State, 760 So.2d 89 (Fla.2000); Johnson v. State, 697 So.2d 1245 (Fla. 1st DCA 1997).

Third, the issue of whether the trial court’s departure from the sentencing guidelines violated the plea agreement also has not been preserved for appeal. Kiely did not file a motion to withdraw his plea as required by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(b). See Wallace v. State, 835 So.2d 1281, 1282 (Fla. 2d DCA 2003).

Accordingly we affirm without prejudice to any right Kiely may have to file a timely, non-successive, facially sufficient motion for ineffective assistance of trial counsel or a timely, facially sufficient petition alleging ineffective assistance of ap[97]*97pellate counsel.²

Affirmed.

NORTHCUTT and SALCINES, JJ., Concur.

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884 So. 2d 95, 2004 Fla. App. LEXIS 5252, 2004 WL 813290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiely-v-state-fladistctapp-2004.

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