       Third District Court of Appeal
                               State of Florida

                           Opinion filed March 6, 2019.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D17-1941
                         Lower Tribunal No. 15-23155
                             ________________


                                 Willie Jones,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

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

      Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellee.


Before EMAS, C.J., and SCALES and HENDON, JJ.

      HENDON, J.
      Willie Jones appeals from a final judgment of conviction and sentence on

the charges of trafficking in cocaine, possession of marijuana with intent to sell,

and possession of drug paraphernalia. Jones argues on appeal that certain of the

trial court’s comments shifted the burden of proof and prejudiced his defense at

trial. None of these comments were objected to at trial. Thus, we will reverse only

if the comment was fundamental error, i.e., “error that ‘reaches down into the

validity of the trial itself to the extent that a verdict of guilty could not have been

obtained without the assistance of the alleged error.’” Brooks v. State, 762 So. 2d

879, 899 (Fla. 2000); see also Jones v. State, 612 So. 2d 1370 (Fla. 1992) (holding

that the contemporaneous objection rule applies to such comments and an appellate

court will not reverse in the absence of an objection unless the comment is so

prejudicial as to be fundamental error); Pope v. Wainwright, 496 So. 2d 798 (Fla.

1986) (concluding that errors other than those constituting fundamental error are

waived unless timely raised in the trial court).

      After a thorough examination of the record on appeal, we find no

fundamental error in the trial court’s comments. Indeed, not every act or comment

that might be interpreted as demonstrating less than neutrality on the part of the

judge will be deemed fundamental error. Mathew v. State, 837 So. 2d 1167 (Fla.

4th DCA 2003). Accordingly, we affirm Jones’ convictions.




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      Finally, Jones asserts that there is a discrepancy between the oral

pronouncement of sentence and the written sentencing order. This error was not

preserved by a contemporaneous objection during the sentencing hearing or by

raising the issue under Florida Rule of Criminal Procedure 3.800(b), which

precludes Jones from raising the error on direct appeal. See Brannon v. State, 850

So. 2d 452, 456 (Fla. 2003); Green v. State, 224 So. 3d 252 (Fla. 3d DCA 2017).

As we find that Jones has neither properly preserved the trial court's alleged

sentencing error, nor demonstrated fundamental error on appeal, we affirm his

sentence without prejudice to Jones to raise this issue in an appropriately filed rule

3.800 motion with the trial court.

      Affirmed.




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