Maddox v. StateMaddox v. State
GRIFFIN, Chief Judge.
We have elected to hear this Anders1 case en banc to clarify the scope of
Maddox entered a plea of nolo contendere to burglary of a structure,2 preserving his right to appeal the trial court‘s order denying his motion to suppress. He preserved no other issues for appeal.3 He was sentenced
In Bisson v. State, 696 So.2d 504 (Fla. 5th DCA 1997), this court addressed an analogous cost issue, despite the failure to file a rule 3.800(b) motion or otherwise preserve the issue for review, on the basis that the cost assessment was illegal and the error therefore “fundamental.” We now conclude, however, that these issues are not reviewable on appeal unless the error is preserved.
In a direct appeal from a conviction or sentence in a nonplea case, the Criminal Appeal Reform Act permits review of only those errors which are (1) fundamental or (2) have been preserved for review.
Recognizing that, in the sentencing arena, the new legislation would preclude the appeal of many sentencing errors which formerly were routinely corrected on direct appeal (such as nonfundamental sentencing errors apparent on the face of the record),5 the supreme court set about creating a method for a criminal defendant to obtain relief from sentencing errors not preserved at the time of sentencing. In essence, the court created a sort of post-hoc device for preserving such sentencing errors for appeal.
The court also clarified in the amendments to the Florida Rules of Appellate Procedure that direct appellate review of any sentencing error in a nonplea case is prohibited if the issue has not first been presented to the trial court. 685 So.2d at 801. The amendments, which became effective January 1, 1997, provide:
(d) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal:
(1) at the time of sentencing; or
(2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).
(2) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
(A) A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.
(B) A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
(i) the lower tribunal‘s lack of subject matter jurisdiction;
(ii) a violation of the plea agreement, if preserved by a motion to withdraw plea;
(iii) an involuntary plea, if preserved by a motion to withdraw plea;
(iv) a sentencing error, if preserved; or
(v) as otherwise provided by law.
The net effect of the statute and the amended rules is that no sentencing error can be considered in a direct appeal unless the error has been “preserved” for review, i.e. the error has been presented to and ruled on by the trial court. This is true regardless of whether the error is apparent on the face of the record. And it applies across the board to defendants who plead and to those who go to trial. As for the “fundamental error” exception, it now appears clear, given the recent rule amendments, that “fundamental error” no longer exists in the sentencing context. The supreme court has recently distinguished sentencing error from trial error, and has found fundamental error only in the latter context. Summers v. State, 684 So.2d 729, 729 (Fla.1996) (“The trial court‘s failure to comply with the statutory mandate is a sentencing error, not fundamental error, which must be raised on direct appeal or it is waived.“); Archer v. State, 673 So.2d 17, 20 (Fla.) (“Fundamental error is `error which 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.‘“), cert. denied, ___ U.S. ___, 117 S.Ct. 197, 136 L.Ed.2d 134 (1996). It appears that the supreme court has concluded that the notion of “fundamental error” should be limited to trial errors, not sentencing errors. The high court could have adopted a rule that paralleled the Criminal Appeal Reform Act, which would allow for review of fundamental errors in nonplea cases, but the court did not do so and made clear in its recent amendment to
The language of
We recognize that the scope of our opinion will be affected by the definition given to the term “sentencing errors.” Some errors which occur at sentencing might be categorized as due process violations, see Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997), a violation of the plea agreement, see Green v. State, 700 So.2d 384 (Fla. 1st DCA 1997),7 or even clerical error. See Johnson v. State, 701 So.2d 382 (Fla. 1st DCA 1997); Massey v. State, 698 So.2d 607 (Fla. 5th DCA 1997). Additionally, fines and penalties are not always imposed as part of a defendant‘s sentence, but may constitute a civil penalty. See, e.g., Bull v. State, 548 So.2d 1103 (Fla. 1989). All such errors, however, are properly regarded as “sentencing errors” within the meaning of
In view of our holding today, we must recede from several of our earlier opinions. As indicated, this court will no longer recognize fundamental error in the sentencing context, contrary to the statements made in Medberry v. State, 699 So.2d 857 (Fla. 5th DCA 1997), Saldana v. State, 698 So.2d 338 (Fla. 5th DCA 1997), Rangel v. State, 692 So.2d 277 (Fla. 5th DCA 1997), Ortiz v. State, 696 So.2d 916 (Fla. 5th DCA 1997) and Bisson v. State, 696 So.2d 504 (Fla. 5th DCA 1997). Nor will this court address illegal
Given our interpretation of
At the intermediate appellate level, we are accustomed to simply correcting errors when we see them in criminal cases, especially in sentencing, because it seems both right and efficient to do so. The legislature and the supreme court have concluded, however, that the place for such errors to be corrected is at the trial level and that any defendant who does not bring a sentencing error to the attention of the sentencing judge within a reasonable time cannot expect relief on appeal. This is a policy decision that will relieve the workload of the appellate courts and will place correction of alleged errors in the hands of the judicial officer best able to investigate and to correct any error. Eventually, trial counsel may even recognize the labor-saving and reputation-enhancing benefits of being adequately prepared for the sentencing hearing. Certainly, there is little risk that a defendant will suffer an injustice because of this new procedure; if any aspect of a sentencing is “fundamentally” erroneous and if counsel fails to object at sentencing or file a motion within thirty days in accordance with the rule, the remedy of ineffective assistance of counsel will be available. It is hard to imagine that the failure to preserve a sentencing error that would formerly have been characterized as “fundamental” would not support an “ineffective assistance” claim.
The defendant in this case was sentenced on December 3, 1996 after entering a plea of no contest. He did not contest the assessment of costs at sentencing, and he did not file a motion to correct his sentence under rule 3.800(b). Thus, neither cost issue has been preserved for review and neither issue can be addressed on appeal.
AFFIRMED.
DAUKSCH, COBB, W. SHARP, GOSHORN, HARRIS, PETERSON and ANTOON, JJ., concur.
THOMPSON, J., concurs and dissents in part, with opinion, in which DAUKSCH, J., concurs.
THOMPSON, Judge, concurring in part, dissenting in part.
To the extent that the decision recedes from prior opinions of this court, I agree with the majority that cost assessments cannot be reviewed as fundamental error. See Medberry; Rangel; Ortiz; Bisson. However, I do not agree there is support for the statement, which I consider to be dictum, that the Florida Supreme Court has eliminated “fundamental error” in the sentencing context. This court cites Summers and Archer in support of this statement, but the cases stand for different principles.
In Summers, the supreme court answered a certified question dealing with juvenile sentencing. The issue before the court was whether a trial court‘s failure to consider the criteria of section 39.05(7)(c), Florida Statutes (1991) and contemporaneously reduce its
Archer was a death penalty resentencing case. The issue on appeal relevant to this case was fundamental error as related to the failure of the trial court to give the reasonable doubt instruction to the resentencing jury. The defendant did not make a contemporaneous objection at trial and attempted to raise the issue for the first time on appeal. The supreme court held that the failure of the trial court to give a jury instruction defining reasonable doubt at the resentencing was not fundamental error. Id. at 20. Since the defendant did not object, review could only be granted if there was fundamental error. Repeating the definition of fundamental error from State v. Delva, 575 So.2d 643, 644-645 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)), the supreme court found no fundamental error because there is no constitutional requirement that a trial court define reasonable doubt. The definition of fundamental error is accurate, but in no manner supports the conclusion that the supreme court has done away with fundamental error in sentencing.
I agree the supreme court is narrowing the idea of fundamental error. See e.g. J.B. v. State, 705 So.2d 1376 (Fla.1998); Davis. In J.B., the court held that there was no fundamental error at trial in the admission of a confession although there was no independent proof of corpus delicti. Although J.B. did not involve a sentencing error, it is obvious the supreme court is reexamining the fundamental error doctrine in Florida and is narrowing its application. However, I believe it is left to be seen whether the court will adopt, as does the majority, the rule that “no sentencing error can be considered in a direct appeal unless the error has been `preserved’ for review i.e. the error has been presented to and ruled on by the trial court. This is true regardless of whether the error is apparent on the face of the record.” At this juncture, I do not think we can say that the supreme court has definitively eliminated fundamental sentencing error or direct review thereof. That statement must be made by the supreme court and must be unequivocal. Therefore, I agree with the holding on costs, but disagree with the statement that fundamental error no longer exists in the sentencing context. I would also certify this issue to the supreme court.
DAUKSCH, J., concurs.