Manning v. State

461 So. 2d 1025, 10 Fla. L. Weekly 129

Opinion

461 So.2d 1025 (1985)

Peter MANNING, Appellant,
v.
STATE of Florida, Appellee.

No. 83-2343.

District Court of Appeal of Florida, Fourth District.

January 4, 1985. Rehearing Denied January 30, 1985.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant "affirmatively selected" to be sentenced by the trial court under the sentencing guidelines. See § 921.001, Fla. Stat. (1983); Fla.R.Crim.P. 3.701. On appeal he challenges for the first time the constitutionality of the application of the above cited statute to the facts of his case. Only challenges which allege facial unconstitutionality of a statute raise a question as to subject matter jurisdiction and are therefore arguable, as fundamental, for the first time on appeal. Thus, the instant challenge was waived by the failure to raise it in the trial court. Trushin v. State, 425 So.2d 1126 (Fla. 1983); Alexander v. State, 450 So.2d 1212 (Fla. 4th DCA 1984).

ANSTEAD, C.J., and HERSEY and GLICKSTEIN, JJ., concur.