       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 12, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-268
                  Lower Tribunal Nos. 94-41184 E; 00-12212
                             ________________


                               Orenthal Green,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.


Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

      ROTHENBERG, C.J.
      Orenthal Green (“the defendant”) appeals the trial court’s entry of an order

revoking probation and sentencing him to life in prison based on unpreserved

alleged errors during sentencing. Because we find that the defendant has failed to

demonstrate fundamental error in the trial court’s imposition of life sentences for

violating his probation, we affirm.

                                 BACKGROUND

      In 1994, the defendant was charged with and later adjudicated guilty of

kidnapping and sexual battery (case no. F94-041184E), and he was sentenced to

five years in prison, followed by three years of probation. In 2001, the defendant

was charged with violating his probation. The affidavit of violation of probation

included, among other violations, the defendant’s arrest for robbery with a knife,

attempted robbery with a firearm, and grand theft auto. The defendant pled guilty

to the violations alleged and to the substantive charges of armed robbery with a

knife charged in case no. F00-12212, and grand theft of a vehicle charged in case

no. F00-12262. The defendant was sentenced as a habitual violent felony offender

to fifteen years in prison, followed by ten years of probation in case no. F94-

041184E; fifteen years in prison followed by ten years of probation in case no.

F00-12212; and ten years in prison in case no. F00-12262. All sentences were

ordered to run concurrently.




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      In 2015, another affidavit of violation of probation was filed, alleging that

the defendant violated the conditions of his probation by testing positive for

cocaine and by failing to report to his probation officer. After a hearing, the trial

court found that the defendant willfully and substantially violated his probation.

Before sentencing, the defendant moved for a continuance so that his mother could

be present for sentencing. After denying the defendant’s motion for a continuance,

the trial court heard testimony regarding the defendant’s criminal history,

including his prior probation violations. The trial court noted the victim’s injury in

case no. F94-041184E, the concurrent sentences relating to the robbery with a

knife and the grand theft auto, and that the defendant took out a small hand gun

and attempted to commit a robbery at a restaurant. Before the trial court

pronounced the sentences, the defendant spoke on his own behalf. Thereafter, the

trial court revoked the defendant’s probation and sentenced the defendant to life in

prison in case no. F94-041184E and life in prison in case no. F00-12212, with the

sentences running concurrently. The defendant timely appealed.

                                    ANALYSIS

1. The defendant’s motion for a continuance

      The defendant contends that the trial court erred by refusing to grant a

continuance of the sentencing hearing so that the defendant’s mother could testify.

See Jones v. State, 125 So. 3d 917, 919 (Fla. 4th DCA 2013) (holding that a



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court’s denial of a motion for continuance is reviewed for an abuse of discretion).

However, our review of the record does not indicate that the defendant asked the

trial court to continue the sentencing hearing to allow his mother to testify. Rather,

the record before this Court reflects that the defendant merely asked the trial court

to continue the hearing to allow his mother to be present for the sentencing

hearing. As the defendant never informed the trial court that he wanted his mother

to be a witness at the sentencing hearing, this issue was not preserved for appellate

review. Farina v. State, 937 So. 2d 612, 628-29 (Fla. 2006) (stating that to preserve

an issue for appellate review, the defendant must:             (1) make a timely,

contemporaneous objection; (2) state the legal ground for that objection; and (3)

raise the same specific legal ground on appeal that was asserted as the legal ground

for the objection below).

      Even if this alleged error had been properly preserved, we would find no

abuse of discretion. Florida Rule of Criminal Procedure 3.720(b) merely requires

that the defendant be afforded “the opportunity to present matters in mitigation of

sentence.” Cheatham v. State, 346 So. 2d 1218, 1218 (Fla. 3d DCA 1977) (stating

that “the court is not compelled under the rules to grant defendant a continuance

prior to sentencing upon his motion therefor”); see also Jones, 125 So. 3d at 919.

As the defendant was given an opportunity to present mitigation evidence and has




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not identified any prejudice resulting from the trial court’s denial of his motion for

a continuance, we find no reversible error.

2. The trial court’s alleged reliance on uncharged offenses

      Next, the defendant contends that his constitutional rights were violated

during the sentencing hearing when the trial court mentioned (1) injuries sustained

by the victim in case no. F94-041184E, as he was not charged with causing serious

bodily injury in that case, and (2) the defendant’s possession of a firearm during a

robbery of a restaurant, as he pled guilty to a different robbery, during which he

possessed a knife. These alleged errors, however, were not properly preserved for

appellate review. See Farina, 937 So. 2d at 628-29. In fact, after the trial court

made the comments at issue, the trial court asked, “Does anybody challenge the

prior criminal history of the Defendant?” In response, defense counsel stated, “No,

Judge.”

      Nevertheless, even if these alleged errors had been properly preserved, a

trial court has wide discretion to consider all relevant information when imposing

an appropriate sentence for the crime the defendant committed. Charles v. State,

204 So. 3d 63, 67 (Fla. 4th DCA 2016) (“In sentencing within the law’s minimum

and maximum, the discretion afforded is about as broad as discretion can be for

trial judges.”) (quoting Whitmore v. State, 27 So. 3d 168, 173 (Fla. 4th DCA 2010)

(Farmer, J., dissenting)); Bracero v. State, 10 So. 3d 664, 665 (Fla. 2d DCA 2009).



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The conduct which led to the charges brought against the defendant was relevant

when considering the appropriate sentence to impose after the defendant violated

his probation. See Howard v. State, 820 So. 2d 337, 340 (Fla. 4th DCA 2002)

(“While the due process clause does prohibit a court from considering charges of

which an accused has been acquitted when passing sentence, it does not preclude

the court from considering all relevant factors when imposing a sentence

authorized for the crime of which the defendant was convicted.”) (footnote

omitted).

      As for the victim’s injuries in case no. F94-041184E, the charging document

alleged that the defendant used physical force and violence in the commission of

the sexual battery, the original sentencing scoresheet took into consideration the

victim’s injuries and the arrest affidavit, which lays out in detail the injuries the

victim suffered. Similarly, as to the defendant’s possession of a firearm during an

armed robbery of a restaurant, we note that his arrest for this offense was described

in the affidavit of violation of probation that resulted in the defendant’s revocation

of probation in case no. F94-041184E, and the defendant pled guilty to violating

the conditions of his probation. In short, this information was relevant and properly

considered by the trial court when it reviewed the defendant’s criminal history and

considered his repeated violations of probation. We therefore find no error.

3. Alleged illegal sentence in case no. F94-041184E



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      Lastly, the defendant contends that the trial court’s imposition of a life

sentence for the kidnapping and sexual battery charged in case no. F94-041184E

was illegal. This error was neither preserved by a contemporaneous objection

during the sentencing hearing nor by raising the issue under Florida Rule of

Criminal Procedure 3.800(b), which precludes the defendant from raising the error

on direct appeal. Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003). However, even

if the error had been preserved, the error would not constitute fundamental error

because the defendant is serving a concurrent life sentence for an armed robbery in

case no. F00-12212. Jordan v. State, 143 So. 3d 335, 337 (Fla. 2014) (“The

concurrent sentence doctrine provides that in the case of multiple concurrent

sentences, an appellate court need not address challenges to every conviction

where another conviction with a concurrent sentence of equal or greater length has

been affirmed on appeal.”).

                                  CONCLUSION

      In summary, we find that the defendant has neither properly preserved the

trial court’s alleged sentencing errors, nor demonstrated fundamental error on

appeal. We additionally note that the defendant contends that he was not given

credit for time served. However, this issue was not properly preserved for appellate

review, and we therefore affirm without prejudice to the defendant to file a rule

3.800 motion with the trial court to address this issue.



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Affirmed.




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