County Criminal Court: APPELLATE PROCEDURE – Preservation of Error. State failed to preserve for appellate review alleged sentencing errors by failing to raise any objections to the withholding of adjudication and failure to impose restitution. State v. George, No. CRC 04-52 APANO, (Fla. 6th Cir.App.Ct. Dec. 12, 2005).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 04-52 APANO

UCN522004AP000052XXXXCR

SAMUEL VARGHES GEORGE

 

            Appellee.

_________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a sentence entered

by the Pinellas County Court

County Judge Paul Levine

 

Doneene Dresback, Esq.

Assistant State Attorney

 

Walter Grantham, Jr., Esq.

Attorney for appellee

 

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the State’s appeal from a sentence imposed by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the sentence.

            The State claims that the trial court made two errors when it sentenced the defendant. First, the State claims the trial court erred when it withheld adjudication but failed to also impose probation as required by §948.01(2), Fla. Stat. (2005) and Fla.R.Crim.P. 3.670. This Court has already ruled that whenever adjudication is withheld, probation must be imposed. See State v. Lindner, No. CRC 05-5 APANO, (Fla. 6th Cir.App.Ct. July 12, 2005). This Court has also, however, required the State to preserve this type of error with a timely objection. See State v. Simmons, No. CRC 04-2 APANO, (Fla. 6th Cir.App.Ct. December 20, 2004)(where the court found that the error was not preserved for appellate review because there was no specific objection to the failure to impose probation). A review of the record in the present case reveals that the State failed to raise an objection to the trial court’s failure to impose probation. Therefore, the issue has not been preserved for appellate review.

            The second alleged error raised by the State is that the trial court erred in failing to impose restitution in this case. §775.089(1)(a), Fla. Stat. (2005) provides that: “the court shall order the defendant to make restitution to the victim for: (1) Damage or loss caused directly or indirectly by the defendant’s offense … unless it finds clear and convincing reasons not to order such restitution.” The State argues that the trial court erred in not imposing restitution to the victim in this case --- the City of Dunedin --- for damage caused to a building and its contents when the defendant crashed into the building while recklessly driving. The State argues that the trial court’s reason for denying restitution was that the defendant’s insurance would cover the victim’s loss. In its brief the State correctly points out that the presence of insurance does not preclude an award of restitution. See Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997).

            The State did not, however, preserve this issue for appellate review. A review of the transcript reveals that the State failed to raise any objection, let alone the specific legal objection raised during this appeal, at the time the trial court denied restitution. The issue, therefore, has not been preserved for appellate review.

            IT IS THEREFORE ORDERED that the sentence is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of December, 2005.

 

 

                                                                                    __________________________

                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                R. Timothy Peters

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

 

cc:        State Attorney

 

            Walter Grantham, Jr., Esq.

 

            Judge Levine