Thogode v. State

731 So. 2d 114 (1999)

Matthew THOGODE, Appellant,
v.
STATE of Florida, Appellee.

No. 97-3117.

District Court of Appeal of Florida, Fifth District.

April 16, 1999.

James B. Gibson, Public Defender, and Kenneth Witts, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, C.J.

Matthew Thogode ["defendant"] appeals his judgments and sentences for three counts of sexual battery upon a person less than twelve years of age, one count of attempted sexual battery upon a person less than twelve years of age, and two counts of committing lewd and lascivious acts upon a child. He received three life sentences for the sexual batteries.

Defendant was sentenced to 22.3 years in prison for the attempted sexual battery, and 15 years in prison for each lewd act, all to be served consecutively. We find no error that would warrant reversal of the convictions. Appellant contends for the first time on appeal that it was error to make the sentences for the non-capital crimes consecutive because they constitute an upward departure sentence without written reasons. It is not claimed that this error is fundamental. Even if it were a fundamental error, it cannot be raised first on appeal. Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA), review granted, 718 So. 2d 169 (Fla.1998).

AFFIRMED.

COBB and THOMPSON, JJ., concur.