Kirin v. State

District Court of Appeal of Florida

Kirin v. State

798 So. 2d 12, 2001 Fla. App. LEXIS 13426, 2001 WL 1131026

CourtDistrict Court of Appeal of Florida

DecidedSeptember 26, 2001

DocketNo. 4D00-3310

StatusPublished

This text of 798 So. 2d 12 (Kirin 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.

Bluebook

Kirin v. State, 798 So. 2d 12, 2001 Fla. App. LEXIS 13426, 2001 WL 1131026 (Fla. Ct. App. 2001).

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Opinion

TAYLOR, J.

Following a bench trial, appellant was found guilty of tampering with physical evidence, obstructing an officer without violence, and unlawful possession of snook. We affirm, as there was competent substantial evidence to support convictions on all of these charges.

Appellant was placed on probation for two years on the tampering charge and for one year on the obstruction and snook possession charges, all to run concurrent with each other, with a special condition that he refrain from fishing during his probationary terms. Appellant first contends that' the “no fishing” condition is invalid. We agree with the state that this issue has not been properly preserved for direct appeal because appellant did not raise this sentencing error at the time of sentencing or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). In any event, we find that appellant’s contention that the fishing prohibition was an invalid probation condition lacks merit.

Second, appellant argues that the one-year probationary term for unlawful possession of snook is illegal because it exceeds the statutory maximum sentence of sixty days or six months probation permitted for a second-degree misdemeanor. See §§ 370.021, 775.082(4)(b), Fla. Stat. [13]*13(2000); see also State v. Summers, 642 So.2d 742 (Fla.1994) (stating that probation terms are subject to a statutory maximum). Again, appellant did not raise this sentencing error at the time of sentencing or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). Consequently, we cannot correct this sentencing error, though fundamental, because appellant did not properly preserve if for review on direct appeal.¹ See Wise v. State, 767 So.2d 1162 n. 1 (Fla.2000); Garrett v. State, 788 So.2d 328, 330 (Fla. 4th DCA 2001).

Accordingly, we affirm without prejudice to appellant’s right to file a rule 3.800(a) motion to correct sentence.

AFFIRMED.

STONE and WARNER, JJ., concur.

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TAYLOR, J.

Following a bench trial, appellant was found guilty of tampering with physical evidence, obstructing an officer without violence, and unlawful possession of snook. We affirm, as there was competent substantial evidence to support convictions on all of these charges.

Appellant was placed on probation for two years on the tampering charge and for one year on the obstruction and snook possession charges, all to run concurrent with each other, with a special condition that he refrain from fishing during his probationary terms. Appellant first contends that' the “no fishing” condition is invalid. We agree with the state that this issue has not been properly preserved for direct appeal because appellant did not raise this sentencing error at the time of sentencing or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). In any event, we find that appellant’s contention that the fishing prohibition was an invalid probation condition lacks merit.

Second, appellant argues that the one-year probationary term for unlawful possession of snook is illegal because it exceeds the statutory maximum sentence of sixty days or six months probation permitted for a second-degree misdemeanor. See §§ 370.021, 775.082(4)(b), Fla. Stat. [13]*13(2000); see also State v. Summers, 642 So.2d 742 (Fla.1994) (stating that probation terms are subject to a statutory maximum). Again, appellant did not raise this sentencing error at the time of sentencing or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). Consequently, we cannot correct this sentencing error, though fundamental, because appellant did not properly preserve if for review on direct appeal.¹ See Wise v. State, 767 So.2d 1162 n. 1 (Fla.2000); Garrett v. State, 788 So.2d 328, 330 (Fla. 4th DCA 2001).

Accordingly, we affirm without prejudice to appellant’s right to file a rule 3.800(a) motion to correct sentence.

AFFIRMED.

STONE and WARNER, JJ., concur.

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Bluebook (online)

798 So. 2d 12, 2001 Fla. App. LEXIS 13426, 2001 WL 1131026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirin-v-state-fladistctapp-2001.

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