¶1concurring.
¶2I concur fully, but point out the specific chronology of this case. Aguilar was sentenced on June 27, 2008, and he timely initiated a direct appeal. The case was fully briefed as of May 24, 2004. Blakely was decided on June 24, 2004. We affirmed his conviction on July 9, 2004, and Aguilar filed this petition for rehearing on July 19, 2004, well within the thirty-day limit for filing a rehearing petition. See Ind. Appellate Rule 54(B).
¶3It is clear that newly announced constitutional rules must be applied to all cases still pending on direct review when the rule was announced. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). The fact is this appeal was in our pipeline when Blakely was handed down and the rehearing petition was timely filed. Blakely was decided before our original opinion in this case was certified as final. Aguilar's direct appeal was still pending when Blakely was decided and, therefore, it must be applied here.
¶4In another set of cireumstances, I would not be as kindly disposed to the appellant. This remand for sentencing does not open all previous aggravated sentences to collateral attack under Blakely.
¶5dissenting.
¶6I respectfully dissent from the majority's decision to grant rehearing in this case, inasmuch as Aguilar has raised the Blakely issue for the first time on rehearing. As a panel of this court observed in Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind.Ct.App.2004), a defendant who fails to challenge his sentence on direct appeal has waived the issue. See also Mitchell v. State, 730 N.E.2d 197, 201 (Ind.Ct.App. 2000), trans. denied, (holding that when a defendant does not properly bring an objection to the trial court's attention so that the trial court may rule upon it at the appropriate time, he is deemed to have waived that possible error).
¶7I would also note that the United States Supreme Court issued its opinion in Ap-prendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), well *766before Aguilar's sentencing hearing. In my view, that the Apprendi rule was extended in Blakely is of no moment, because Aguilar should have objected on Ap-prendi grounds and preserved this issue, just as the defendant in Blakely did. For these reasons, I vote to deny Aguilar's request for rehearing.