Jackson v. StateJackson v. State
- Reporters:
- ,
- Before:
- Cantero
CANTERO, J.
In this case, we decide whether a trial court‘s consideration, for sentencing purposes, of victim impact testimony without defense counsel present is a sentencing error as contemplated by
For the reasons explained below, we hold that the denial of counsel at sentencing is not a “sentencing error” under
I. FACTS AND PROCEDURAL HISTORY
A jury found the Petitioner guilty of aggravated battery with a weapon. After the verdict, the trial judge ordered a presentence investigation and set sentencing four weeks later. Before the court adjourned, the State requested that the victim, who had flown in from North Carolina for the trial, be allowed to speak on the issue of sentencing.1 The trial court responded: “Have her produced. I‘m not going to make her come back from North Carolina for sentencing. Everybody stay put until we get the girl back up here.” Defense counsel left the courtroom.
After a brief recess, the hearing reconvened. Present were the prosecutor, the defendant, and the victim. Defense counsel did not return. The court ordered a lunch recess, after which the same parties returned. The trial judge expressed reluctance to hear the victim‘s testimony without
During the victim‘s testimony (which in the transcript is fewer than seven pages long), defense counsel called in and was placed on speakerphone in the courtroom. The following conversation occurred:
THE COURT: Did you not understand that I was going to take the victim‘s statement so that she wouldn‘t have to come back from North Carolina?
MR. ANDERSON [defense counsel]: No, I‘m sorry. I certainly didn‘t.
THE COURT: I thought I made it clear. I‘ve taken part of her statement. You can listen to the rest. I will go further and tell you what I have gotten so far.
MR. ANDERSON: Okay.
After summarizing her statement, the trial judge informed the victim that the minimum sentence would be about three years in prison, with a maximum of thirty years. The victim did not think three years was enough, but thought thirty years was too much.
Subsequently, the trial judge held a sentencing hearing. Defense counsel was present. In arguing for a sentence toward the low end of the guidelines, defense counsel noted, among other things: “After all, my understanding is that the victim was opposed to a draconian sentence. . . .” The court adjudged Jackson guilty of aggravated battery and sentenced her to five years in prison.
After filing a notice of appeal, the defense filed a motion to correct sentencing error, arguing that the written judgment and sentencing scoresheet erroneously showed a conviction of aggravated battery with a firearm instead of aggravated battery with a weapon, and also that the judgment showed a conviction for a first-degree felony even though the trial judge orally announced that the crime was a second-degree felony, and sentenced Jackson accordingly. The motion did not raise the absence of counsel during the victim impact testimony. The trial court granted the motion.
On appeal, Jackson argued “that the trial court erred in hearing testimony from the victim for purposes of sentencing without defense counsel present in the courtroom.” Jackson, 952 So.2d at 614. The Second District affirmed, concluding that the “sentencing error” was not preserved, and certified conflict with the First District‘s decision in Gonzalez, 838 So.2d 1242, that the lack of representation during resentencing is “not a sentencing error, but rather a due process error” that may be raised on direct appeal.
We now resolve the conflict.
II. ANALYSIS
As stated earlier, the issue in this case is whether a trial court‘s consideration for sentencing purposes of victim impact testimony without defense counsel present is a sentencing error as contemplated by
We have stated often, and again just recently, that most trial court errors
This requirement is “based on practical necessity and basic fairness in the operation of a judicial system.” Castor v. State, 365 So.2d 701, 703 (Fla.1978). The rule “not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client‘s tactical advantage.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003).
Insko v. State, 969 So.2d 992, 1001 (Fla. 2007). These reasons are as relevant in the context of sentencing as in any other.
Errors that have not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental. See, e.g., Goodwin v. State, 751 So.2d 537, 544 (Fla.1999) (“If the error is not properly preserved or is unpreserved, the conviction can be reversed only if the error is `fundamental.‘“). Fundamental error is “error which goes to the foundation of the case or goes to the merits of the cause of action.” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)). In this case, the Petitioner did not preserve by contemporaneous objection her claim of a deprivation of counsel during part of the victim impact statement.2 Ordinarily, therefore, an appellate court could review the claim, but only for fundamental error.
The State argues, however, and the Second District held, that the trial court‘s error was a “sentencing error,” which is subject to slightly different rules. As we recently explained, a defendant has several different options available to raise sentencing errors:
First, when preserved for review, the error may be raised on direct appeal. Second, even if not originally preserved, “to provide defendants with a mechanism to correct sentencing errors in the trial court at the earliest opportunity” and to “give defendants a means to preserve these errors for appellate review,” we amended
Florida Rule of Criminal Procedure 3.800(b) to allow defendants to file a motion to correct sentencing error even while an appeal is pending (but before the initial brief). This rule also authorizes the trial court to hold an evidentiary hearing. Third, underrule 3.850 , a defendant may raise a sentencing error within two years after the sentence becomes final. . . .. . . .
Rule 3.800(a) provides yet a fourth avenue for asserting sentencing error. . . . Under this rule, a defendant may allege (1) that the sentence imposed is illegal; (2) that insufficient credit was awarded for time served; or (3) that the sentencing scoresheet was incorrectly calculated.
Brooks v. State, 969 So.2d 238, 241-42 (Fla.2007) (citations and footnote omitted) (quoting Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015, 1016 (Fla.1999) (Amendments II)). In this case, we focus on
Thus,
Because Jackson did not preserve the claim at issue by contemporaneous objection, the narrow issue before us is whether that claim addresses a “sentencing error” that should have been raised in a motion under
Below, we explain our holding by (A) outlining the conflict in the district courts; (B) detailing the background of
A. The Conflict in the District Courts
The conflict issue is whether a claim of denial of counsel at sentencing is a “sentencing error” for purposes of
In his specially concurring opinion, Judge Stringer disagreed that Jackson‘s claim could have been preserved under
Jackson‘s lack of representation at the sentencing hearing is not a harmful error in an order entered as a result of the sentencing process. It is also not an error within the sentence itself. Instead, Jackson‘s lack of representation constitutes a due process violation that occurred at the sentencing hearing and which was subject to the contemporaneous objection rule.
. . . I do not believe that by adopting
rule 3.800(b)(2) the supreme court intended to give a criminal defendant the right to stand mute in the face of obvious procedural irregularities at a sentencing hearing secure in the knowledge that if he or she is dissatisfied with the resulting sentence, he or she could resurrect objections to those procedural deficiencies in a subsequent3.800(b)(2) motion.
Id. He therefore agreed with the First District‘s decision in Gonzalez. Id.
To resolve the conflict, we must decide whether a claim of a denial of counsel at sentencing is a “sentencing error” as contemplated by
B. Rule 3.800(b)
We begin by outlining the history of
We promulgated
Unfortunately, the rule changes did not have the desired effect, but instead spawned a new debate about what constitutes fundamental error and whether any unpreserved sentencing error may be considered on direct appeal. Amendments II, 761 So.2d at 1016. We therefore amended
The Court Commentary to
C. Clarifying the Definition of “Sentencing Error”
Although quoted above, the definition of “sentencing error” in the Court Commentary to
As we explained in Amendments I,
These cases are consistent with the goal of both the Act and the rules amendments to ensure that sentencing errors are brought to the trial court‘s attention at the earliest opportunity. See, e.g., Maddox, 760 So.2d at 95; Amendments II, 761 So.2d at 1016. When a sentence is erroneous, it is more efficient to address the issue in the trial court first, where it can be quickly remedied. In many circumstances, however, defendants do not have the opportunity to object or otherwise address the trial court before the sentencing order is entered. For example, where the written sentence deviates from an oral pronouncement, the defendant has no reason to object at the sentencing; only when the sentencing order issues does the defendant notice the discrepancy. Before
In contrast, defendants do have the opportunity to object to many errors that occur during the sentencing process — for example, the introduction of evidence at sentencing. The rule was never intended to allow a defendant (or defense counsel) to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under
The rule was not intended to circumvent rules requiring contemporaneous objections or enforcing principles of waiver. It was not intended to give a defendant a “second bite at the apple” to contest evidentiary rulings made at sentencing to which the defendant could have objected but chose not to do so. It was not intended as a broad substitute for a postconviction claim of ineffective assistance of counsel for counsel‘s representation at a sentencing hearing.
In addition, we have recognized that the changes to the statutes and rules were intended to relieve the appellate workload and to limit sentencing errors brought on direct appeal. See, e.g., Amendments II, 761 So.2d at 1016. Allowing defendants to use
On the other hand, the rule applies to more than illegal sentences. According to its plain language,
Thus, as written,
D. The Deprivation of Counsel During Part of a Sentencing Proceeding is not Fundamental Error
Having concluded that a claim of denial of counsel at sentencing is not a “sentencing error” subject to
“To establish a claim of denial of the right to counsel, a defendant `need only show that counsel was absent during a critical stage of the proceedings. . . .‘” Wilson v. State, 764 So.2d 813, 816 (Fla. 4th DCA 2000) (quoting Green v. Arn, 809 F.2d 1257, 1263 (6th Cir.1987), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987)). “Sentencing is considered a critical stage at which a defendant is entitled to counsel.” Williams v. State, 936 So.2d 663, 664 (Fla. 4th DCA 2006). It is undisputed that Jackson‘s counsel was absent during part of the victim impact testimony — testimony that, although it occurred just after trial, ordinarily is part of sentencing.
We have noted that “[g]enerally, fundamental errors are those of constitutional dimension. But not all errors of constitutional dimension are fundamental.” Maddox, 760 So.2d at 100 (quoting Judge v. State, 596 So.2d 73, 79 n. 3 (Fla. 2d DCA 1991)). As we explained in Hopkins:
Fundamental error is “error which goes to the foundation of the case or goes to the merits of the cause of action.” If a procedural defect is declared fundamental error, then the error can be considered on appeal even though no objection was raised in the lower court. However, this Court has cautioned that the fundamental error doctrine should be used “very guardedly.” “[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.”
632 So.2d at 1374 (citations omitted) (quoting Sanford, 237 So.2d at 137, and State v. Johnson, 616 So.2d 1, 3 (Fla.1993)).
Undoubtedly, “[t]he right to counsel is a fundamental right.” Vileenor v. State, 500 So.2d 713, 714 (Fla. 4th DCA 1987). Florida courts, including this Court, have found deprivations of counsel to be fundamental error. See, e.g., State v. B.P., 810 So.2d 918, 919 (Fla.2002) (“[T]he denial of counsel [at a juvenile plea hearing] constituted fundamental error.“); Brady v. State, 910 So.2d 388, 390 (Fla. 2d DCA 2005) (“The denial of Brady‘s right to counsel is fundamental error requiring reversal.“); J.R.V. v. State, 715 So.2d 1135, 1139 (Fla. 5th DCA 1998) (“Denial of the right to assistance of counsel is fundamental error.“); Tyler v. State, 710 So.2d 645, 648 (Fla. 4th DCA 1998) (“A denial of a right to counsel is fundamental error.“). These cases generally involve deprivation of counsel during an entire proceeding. See B.P., 810 So.2d at 918 (juvenile plea hearing); Brady, 910 So.2d at 390 (probation revocation hearing); J.R.V., 715 So.2d at 1139 (juvenile delinquency proceeding); Tyler, 710 So.2d at 646 (violation of probation hearing). We agree with the First District that a complete denial of counsel at resentencing, as occurred in Gonzalez, is fundamental error.
Jackson‘s claim, however, is of a denial of counsel for only part of the sentencing — in fact, only part of the victim impact testimony itself. We have not considered whether the temporary absence of counsel, i.e., a partial deprivation, is fundamental error. But see Diaz v. State, 435 So.2d 911, 912 (Fla. 4th DCA 1983) (rejecting a claim that fundamental error occurred where counsel was absent during an Allen6 charge). However, both we and other courts have analyzed partial deprivations under a harmless error standard. See, e.g., Thompson v. State, 507 So.2d 1074, 1075 (Fla.1987) (applying the harmless error test to the deprivation of counsel during a recess); Wilson v. State, 764 So.2d 813, 819 (Fla. 4th DCA 2000) (applying the harmless error standard to a deprivation of counsel during an in-court discussion
These cases imply that the errors considered could not have been fundamental. As we have explained:
[F]undamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental. . . .
To justify not imposing the contemporaneous objection rule, “the error must reach 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.” . . .
Thus, for error to meet this standard, it must follow that the error prejudiced the defendant. Therefore, all fundamental error is harmful error. However, we likewise caution that not all harmful error is fundamental. Error which does not meet the exacting standard so as to be “fundamental” is subject to review in accord with State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (discussing the harmless error test).7
Reed v. State, 837 So.2d 366, 369-70 (Fla. 2002) (footnote and citations omitted) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).
The United States Supreme Court has “recognized a limited class of fundamental constitutional errors that `defy analysis by the “harmless error” standards.‘” Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). These errors are “so intrinsically harmful as to require automatic reversal (i.e., `affect substantial rights‘) without regard to their effect on the outcome.” Id. at 7. The “complete denial of counsel” has been listed as one of the “very limited class of cases” involving “structural” error requiring automatic reversal. Id. at 8 (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). However, “[v]iolations of the right to counsel may not always be structural defects which allow a reviewing court to bypass harmless error analysis.” Henderson v. Frank, 155 F.3d 159, 171 (3d Cir.1998). For example, in Satterwhite v. Texas, 486 U.S. 249, 253, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), the United States Supreme Court applied a harmless error analysis to a claim of a denial of the right to consult with defense counsel before a psychiatric examination. The Court concluded that the expert‘s examination-based testimony at the capital sentencing proceeding violated the Sixth Amendment. Id. at 256, 108 S.Ct. 1792. It rejected, however, a per se rule of reversal:
Satterwhite urges us to adopt an automatic rule of reversal for violation of the Sixth Amendment right recognized in Estelle v. Smith [451 U.S. 454, 471, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that the death penalty was improperly imposed where the psychiatric examination on which the expert testified at the penalty phase proceeded in violation
of the right to counsel) ]. He relies heavily upon the statement in Holloway [v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) ] that “when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).” His reliance is misplaced, however, for Holloway, Gideon, Hamilton, and White were all cases in which the deprivation of the right to counsel affected — and contaminated — the entire criminal proceeding. In this case, the effect of the Sixth Amendment violation is limited to the admission into evidence of [the expert‘s] testimony. We have permitted harmless error analysis in both capital and noncapital cases where the evil caused by the Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial.
Satterwhite, 486 U.S. at 257, 108 S.Ct. 1792 (emphasis added); see also Vines v. United States, 28 F.3d 1123, 1129 (11th Cir.1994) (concluding, in the context of an ineffective assistance of counsel claim, that “the temporary absence of a defendant‘s trial counsel during a portion of the actual trial does not necessarily affect the conduct of the entire trial. . . . [T]he absence of Vines‘s counsel constitutes a trial error subject to harmless-error analysis.“); United States v. Rapp, 871 F.2d 957, 966 (11th Cir.1989) (applying a harmless error analysis to a deprivation of counsel claim where the trial judge responded to a jury question without counsel present), abrogated on other grounds by United States v. Wells, 519 U.S. 482, 486, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997).
As in Satterwhite and other cases cited, Jackson was not completely deprived of counsel. Even if preserved, the claim would have been subject to harmless error review, thus suggesting that any error could not have been fundamental. See Reed, 837 So.2d at 369 (“[F]undamental error is not subject to harmless error review.“).
The circumstances of the deprivation also confirm that any error was not fundamental. Counsel was present during the entire trial. The jury already had returned a guilty verdict when the trial court ordered the victim‘s testimony to be taken. The court notified counsel of its decision and ordered counsel to return to the courtroom after a brief recess. Jackson‘s counsel failed to return. Counsel joined the hearing by telephone, however, and had the opportunity to participate for part of the victim‘s testimony. When defense counsel joined the hearing by telephone, the trial judge summarized the substance of the testimony. At that point, counsel had the opportunity to question the victim (who was still on the stand). Counsel was also present at the subsequent sentencing hearing, where he relied on the victim impact testimony in urging the trial court to impose a sentence toward the lower end of the guidelines. Under these facts, the failure to provide defense counsel for Jackson during part of the victim‘s statement does not “go[ ] to the foundation of the case or . . . the merits of the cause of action.‘” Hopkins, 632 So.2d at 1374 (quoting Sanford, 237 So.2d at 137). Therefore, any error is not fundamental error, and the failure to raise a contemporaneous objection precludes review. See Goodwin, 751 So.2d at 544.
For the reasons explained above, we hold that a claim of a denial of counsel at sentencing is not the proper subject of a motion under
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, and BELL, JJ., concur.
Notes
(3) An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.