No. BF-17 | Fla. Dist. Ct. App. | Mar 26, 1986
Lead Opinion
In this appeal from a final judgment adjudicating appellant guilty of armed robbery and sexual battery, appellant’s counsel filed a brief, pursuant to Anders v. California,
Appellant was adjudicated guilty of sexual battery and armed robbery. The sentencing guidelines scoresheet recommended life imprisonment. Appellant was sentenced to a term of natural life with no parole for the sexual battery and to 30 years for the armed robbery, to run consecutive with the life sentence. By sentencing appellant to a consecutive term of 30 years for the armed robbery, the trial judge departed from the recommended guideline sentence, but he failed to include a written statement delineating the reasons for the departure, thereby violating Florida Rule of Criminal Procedure 3.701(d)(ll).
It could be argued that this failure to supply a written statement of the reasons for departure constitutes only “harmless error” because, under section 921.001(8), Florida Statutes (Supp.1984), appellant cannot be released from prison during his lifetime. Section 921.001(8) provides that a person convicted of crimes committed on or after October 1, 1983, shall be released from incarceration only upon expiration of his sentence, as reduced by accumulated gain time. It is illogical and inconsistent with section 944.275, Florida Statutes (1983) to assume that a life sentence could be reduced by accumulated gain time and it therefore follows that, where the recommended guidelines sentence is life, any sentence in excess of the recommended sentence does not result in a longer incarceration of the defendant. However, it is possible that appellant’s sentence could be commuted to a term of years
Anders v. California does not require the appellate court to review the record in search of errors not raised by either appellant or his counsel. This court in Reed v. State, 378 So. 2d 899" court="Fla. Dist. Ct. App." date_filed="1980-01-09" href="https://app.midpage.ai/document/reed-v-state-1947959?utm_source=webapp" opinion_id="1947959">378 So.2d 899 (Fla. 1st DCA 1980), suggested that the contentions raised by the appellant or by his counsel control the extent of the record which must be reviewed by the appellate court. The issue not having been raised by either appellant or his counsel, we decline to address the question of whether the trial court committed reversible error by departing from the recommended guidelines sentence without a written statement delineating the reasons for the departure. Because we deem it an issue of great public importance, we certify the following question:
WHETHER THE APPELLATE COURT IS REQUIRED TO REVIEW THE ENTIRE RECORD WHEN THE APPELLANT’S COUNSEL FILES A BRIEF PURSUANT TO ANDERS V. CALIFORNIA, STATING THAT NO GOOD FAITH ARGUMENT CAN BE MADE THAT REVERSIBLE ERROR HAS BEEN COMMITTED, AND IF SO, WHETHER THE APPELLATE COURT MUST CONSIDER POSSIBLE ERRORS INDICATED BY THE RECORD, BUT WHICH ARE NOT RAISED EITHER*877 BY APPELLANT OR BY HIS APPELLATE COUNSEL.
AFFIRMED.
. 386 U.S. 738" court="SCOTUS" date_filed="1967-05-08" href="https://app.midpage.ai/document/anders-v-california-107423?utm_source=webapp" opinion_id="107423">386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), rehearing denied, 388 U.S. 924" court="SCOTUS" date_filed="1967-06-12" href="https://app.midpage.ai/document/united-biscuit-co-of-america-v-federal-trade-commission-8959827?utm_source=webapp" opinion_id="8959827">388 U.S. 924, 87 S. Ct. 2094" court="SCOTUS" date_filed="1967-06-12" href="https://app.midpage.ai/document/new-york-central-r-co-v-united-states-107497?utm_source=webapp" opinion_id="107497">87 S.Ct. 2094, 18 L. Ed. 2d 1377" court="SCOTUS" date_filed="1967-06-12" href="https://app.midpage.ai/document/obryan-v-chandler-8959708?utm_source=webapp" opinion_id="8959708">18 L.Ed.2d 1377.
. Sec. 944.30, Fla.Stat. (1983).
. Sec. 940.01, Fla.Stat. (1983).
Concurrence in Part
concurring in part and dissenting in part:
I concur in certification of the question as a matter of great public importance. However, I dissent from the majority’s disposition of this case. In my opinion, although Anders v. California does not specifically require the appellate court to review the entire record when no appealable issues have been raised by either the appellant or his counsel, the United States Supreme Court did not contemplate that an appellate court, faced with the situation presented here, would close its eyes to reversible error appearing in the record simply because that specific error was not raised by the appellant or by his appellate counsel. Although valid arguments can be made for the position that appellate courts cannot and should not serve as appellate counsel for indigent defendants, worthwhile arguments can also be made that a defendant’s constitutional right to counsel and to meaningful appellate review is not preserved where the appellate court takes the course chosen by the majority in this case.
In my view, the better policy is for the appellate court to review the entire record in each case in which an Anders brief has been filed by appellate counsel, whether or not the appellant files a pro se brief. In the event the appellate court discovers possible reversible error, it should order counsel for both sides to brief the issue, while admonishing appellant’s counsel that it is his duty under the law to conscientiously examine the entire record in order to determine, in his professional opinion, whether any reversible error occurred during the trial proceedings and to file with this court a brief referring to anything in the record that might arguably support the appeal, pursuant to Anders v. California. In the event an attorney serving as counsel for appellants in such cases consistently files Anders briefs which ignore arguable issues, disciplinary action should be taken by the court or by The Florida Bar.
In the case at issue, I would have ordered the parties to brief the issue, decided the case on its merits, and certified the question posed by the majority as one of great public importance.