Sprankle v. State

Mar 11, 1996
No. 95-960
Versions:677 So. 2d 307
1996 WL 100795
1996 Fla. App. LEXIS 2232

Concurrence in Part

BENTON, Judge,

concurring in part and dissenting in part.

“Before proceeding, I would appoint substitute counsel to represent the appellant. See Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 351-52, 102 L.Ed.2d 300 (1988).” Everly v. State, 648 So.2d 310, 311 (Fla. 1st DCA) (Benton, J., dissenting), review denied, 658 So.2d 990 (Fla.1995). Here the appellant makes an explicit request for appointment of appellate counsel, arguing that “the court is obligated to afford assistance of counsel to argue the appeal if it finds legal points arguable on merits.” In addition to arguing for reversal of the three sentences that we today vacate, appellant’s pro se brief contends that scoring three separate offenses as primary rendered the scoresheet erroneous and affected the sentences we do not vacate.

Like the majority, I do not reach the merits of the latter contention. “The preliminary question on which I dissent is whether, in light of the record in this case, Mr. [Spran-kle] has a constitutional right to the assistance of counsel in presenting his appeal.” Id. at 312; Douglas v. California, 372 U.S. 353, 355-56, 83 S.Ct. 814, 815-16, 9 L.Ed.2d 811 (1963); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). While I *309also believe appellant was entitled to and vigorous’ advocacy by counsel,” id., as regards the sentences vacated — not merely the filing of an Anders brief, see McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439 n. 13, 108 S.Ct. 1895, 1902 n. 13, 100 L.Ed.2d 440 (1988) (“the so-called ‘Anders brief is not expected to serve as a substitute for an advocate’s brief on the merits”) — the question in this regard is moot since appellant is afforded the relief he requested — the maximum possible relief — as to the sentences vacated. “ ‘active





Lead Opinion

PER CURIAM.

The public defender assigned to this case has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and appellant also has filed a pro se brief. We have reviewed the record in accordance with State v. Causey, 503 So.2d 321 (Fla.1987), and have found no reversible error apparent on the face of the record.

The public defender has pointed out several technical sentencing errors which must be corrected, although due to numerous concurrent sentences, the correction of these errors will not result in any practical benefit to appellant. While the court imposed a written sentence, following violation of probation, in case no. 89-583, no sentence was pronounced orally in that case. “Every sentence or other final disposition of the case shall be pronounced in open court.” Fla. R.Crim.P. 3.700(b). See also Armstead v. State, 612 So.2d 623 (Fla. 1st DCA 1993). Therefore, the sentence in 89-583 must be vacated. In addition, since the original sentences on counts III and TV in case no. 89-580 did not contain probation components, the court erred in sentencing appellant for violation of probation on those counts, and those sentences also must be vacated. Therefore, we remand for correction of these sentencing errors and for resentencing in Case No. 89-583. In all other respects, the convictions and sentences are affirmed.

JOANOS and WOLF, JJ., concur. BENTON, J., concurring in part and dissenting in part.