677 So. 2d 307 | Fla. Dist. Ct. App. | 1996
Concurrence in Part
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
Lead Opinion
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.
