         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1586
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BRYAN ANTHONY COOPER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

                          July 25, 2018


OSTERHAUS, J.

     Bryan Anthony Cooper appeals his 60-month sentence for
felony battery. He argues that the trial court erred by not
determining whether he willfully failed to appear at a sentencing
hearing before departing from the 22-month plea deal. We affirm
because Mr. Cooper failed to preserve this argument below.

     After the State charged Mr. Cooper for crimes associated with
stabbing and hitting another person in the head with a metal pipe,
he accepted a plea offer of 22 months incarceration on a felony
battery charge. The trial court set Mr. Cooper’s sentencing hearing
for a later date and told him that if he didn’t show, his sentence
would be at the court’s discretion. He then failed to appear at the
scheduled sentencing hearing. After his subsequent arrest, Mr.
Cooper appeared back before the trial court, whereupon he was
sentenced to 60 months. The trial court acknowledged that if Mr.
Cooper would have appeared, he would have gotten the 22 months
under the plea deal. But because he failed to appear and provided
no explanation for failing to appear, the court increased his
sentence. At no time did Mr. Cooper object to the sentence below.

     Mr. Cooper argues now that we must reverse because the trial
court increased his sentence without expressly determining
whether his failure to appear was willful. In Palmore v. State, we
recognized that a non-willful failure to appear doesn’t vitiate a plea
agreement, nor allow the trial court to impose a greater sentence.
82 So. 3d 1004, 1005 (Fla. 1st DCA 2011). To increase a sentence,
we held that the trial court must make a factual determination as
to whether a defendant’s failure to appear was willful. Id. That
case, however, did not involve a defendant who failed to offer any
justification for his failure to appear or object to his sentence. The
trial court warned the defendant here that he would abide by the
plea deal provided that Mr. Cooper showed up for sentencing and
didn’t violate his bond conditions. Mr. Cooper then didn’t show up
for sentencing. Upon his later arrest and appearance at the
subsequently set sentencing hearing, Mr. Cooper offered no
justification for his failure to appear. See Neeld v. State, 977 So. 2d
740, 744 (Fla. 2d DCA 2008) (“Unless the defendant has some
reasonable explanation or justification for the failure to appear,
the trial court can use its discretion to impose an appropriate,
lawful sentence.”). The trial court inquired whether Mr. Cooper
was contesting the failure to appear, but in response received no
explanation or objection to moving forward with the sentencing.
When the court sentenced Mr. Cooper to 60 months, instead of the
22 months reflected in the plea deal, Mr. Cooper still did not object
or explain his failure to appear. Even now, Mr. Cooper’s brief in
this court offers no explanation for his failure to appear. Under
these circumstances, we find no error in the trial court’s work.

    AFFIRMED.

WETHERELL and RAY, JJ., concur.




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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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