Summary
affirming convictions and sentences in Anders appeal but remanding for the entry of a corrected judgment to include sufficient details regarding the counts, crimes, statute numbers, and degree of the crimes
Summary of this case from McMasters v. StateOpinion
No. 2D20-1226
11-24-2021
Simon BARNETT, Jr., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant. Simon Barnett, Jr., pro se. Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
Simon Barnett, Jr., pro se.
Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
SLEET, Judge. Simon Barnett, Jr., appeals his judgment and sentences for resisting officers without violence (count one), trafficking in methamphetamine while possessing a firearm (count two), possession of drug paraphernalia (count three), felon in possession of a firearm (count four), carrying a concealed weapon (count five), and operating a motorcycle without a license (count six). Because Barnett's judgment and sentences for counts one and six do not properly reflect his orally pronounced sentences, we remand for the entry of a proper judgment and sentences for counts one and six in a manner that complies with Florida Rule of Criminal Procedure 3.986. We affirm Barnett's convictions and sentences in all other respects.
On March 2, 2020, Barnett entered a no contest plea to counts one and six. The trial court adjudicated him guilty and sentenced him to 364 days in county jail on count one and sixty days on count six, to run concurrently with each other. The only written memorialization of this sentence was a "memo of sentence," also known as a "snapout," which was only signed by the courtroom clerk. Barnett later entered an open plea to counts two through five and was sentenced to twenty-five years' imprisonment on count two, time served on count three, and fifteen years' imprisonment on counts four and five. A Uniform Commitment to Custody was filed and included a ten-page judgment order listing the judgment and sentences on only counts two through five.
On December 17, 2020, after a notice of appeal had already been filed with this court, Barnett filed his Motion to Correct a Sentencing Error pursuant to rule 3.800(b)(2), alleging that the snapout form entered following Barnett's March 2, 2020, plea to counts one and six was not a valid written sentence and that the monetary obligations assessed on those counts should be stricken to reflect the trial court's oral pronouncement. On January 11, 2021, the postconviction court entered an order granting Barnett's motion and directing the clerk of court to "amend the Uniform Commitment to Custody filed March 18, 2020 by adding the sentences associated with Counts 1 and 6 and striking all monetary obligations associated with the same." On January 20, 2021, the clerk filed an amended Uniform Commitment to Custody which reads at the top of the first page, "[B]eing re-recorded to correct pg 10 of 10." Page ten was then amended to read, "[C]ts. 1 + 6 (PCJ) to run concur w/ cts. 2, 4, + 5."
Counsel for Barnett filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs , 581 So. 2d 149 (Fla. 1991), asserting that he had found no issues of arguable merit except a minor sentencing error related to the entering of a written sentence on counts one and six. We agree and therefore must remand for a corrected sentence. We also note that the judgment entered in this case contains a scrivener's error in that it fails to include counts one and six and that the snapout's inclusion of those counts does not remedy that error. As such, it must also be corrected on remand. Rule 3.986(a) requires a trial court to use a judgment and sentence that conforms to the forms provided in that rule. The form for a judgment should include an indication of whether the defendant (1) was tried and found guilty by a jury or court, (2) entered a plea of guilty, or (3) entered a plea of no contest. Fla. R. Crim. P. 3.986(b). It also should include details regarding the counts, crimes, statute numbers, and degree of the crimes. Id. Finally, it should include an indication of whether the defendant is adjudicated guilty or whether adjudication of guilt is being withheld. Id. And it should be signed by the judge. Id. ; see also Fla. R. Crim. P. 3.670. The form for sentencing should include, at a minimum, the term of the sentence, whether the defendant is to be committed to the custody of the Department of Corrections or the sheriff of the appropriate county, whether the defendant is to complete probation or community control, and whether a sentence is to run consecutively to or concurrently with other counts or convictions. Fla. R. Crim. P. 3.986(d). And it too should be signed by the judge. Id. While the rule allows for variations from the judgment and sentencing forms provided, it only does so if the judgments and sentences "are otherwise sufficient." Fla. R. Crim. P. 3.986(a). Otherwise, they will be void. Id.
Here, although the postconviction court granted Barnett's motion to correct sentencing error, neither the court nor the clerk prepared sufficient amended sentencing documents in compliance with rule 3.986. The mere addition of "cts. 1 + 6 (PCJ) to run concur w/ cts. 2, 4, + 5" to the Uniform Commitment to Custody does not include, at the very minimum, the length of the sentence. Therefore, "even now, [Barnett's] written sentencing documents do not properly reflect his orally pronounced sentence." See Pittman v. State , 310 So. 3d 970, 972 (Fla. 2d DCA 2020).
Additionally, the judgment originally entered by the trial court and included in the initial Uniform Commitment to Custody is deficient in that it only includes counts two through five and fails to include counts one and six. And the addition of the language to the Uniform Commitment to Custody following the trial court's order granting Barnett's motion is insufficient because it does not include an indication that Barnett entered a plea of no contest and was adjudicated guilty nor does it include details regarding the counts, crimes, statute numbers, and degree of the crimes. Accordingly, there is no sufficient judgment as to counts one and six in the record.
Furthermore, the original snapout is insufficient to serve as a proper judgment and sentence. Admittedly, the snapout does include an indication that Barnett pled no contest to counts one and six, the count numbers, and the crimes. However, it does not include whether he was adjudicated guilty or whether adjudication was withheld, the statute numbers of each crime, or the degree of each crime. The "sentencing" portion of the form includes that Barnett is to be committed to the Polk County Jail and the term of the sentence for count one. However, there appears to be a scrivener's error as to the sixty-day sentence. The form attributes that sentence to count two, rather than count six. Among all the above listed deficiencies, arguably the most important deficiency with the snapout is that it is not signed by the judge; it is only signed by the clerk. This is insufficient as the clerk does not have the power to adjudicate or sentence a defendant. See Fla. R. Crim. P. 3.670 (stating that a judgment must be "signed by the judge"); Fla. R. Crim. P. 3.986(d). Accordingly, we must remand for correction of both the judgment and the sentences to properly reflect Barnett's convictions and orally imposed sentences on counts one and six in a manner that complies with rule 3.986.
In doing so, we take the opportunity to yet again address "the Tenth Circuit's continued use of these ‘snap-out’ memoranda of sentence forms [and] the problems that they can cause both on appellate review and in future proceedings." Pittman , 310 So. 3d at 972. This court has consistently expressed concern over the Tenth Circuit's use of these forms since as far back as 1999. Peterson v. State , 730 So. 2d 830, 831 (Fla. 2d DCA 1999) ("When a sentence imposes only probation or a term in the county jail, apparently this circuit is relying exclusively upon the ‘Memo of Sentence,’ also called a ‘snapout.’ This procedure makes it difficult for the appellate court to determine the sentence and to review the conditions of probation.").
Still, despite more than two decades of opinions from this court decrying the practice and pointing out specific problems with the use of the snapouts, the Tenth Circuit has inexplicably continued to use these forms that do not comply with rule 3.986. See Phillips v. State , 198 So. 3d 789, 790 n.2 (Fla. 2d DCA 2016) (collecting cases and noting that this court has been discouraging the use of "snap-outs" for "more than twenty years"); Woods v. State , 987 So. 2d 669, 672 (Fla. 2d DCA 2007) ("There has been a long-standing practice in the Tenth Judicial Circuit of entering final orders in criminal cases on ‘snap-out’ forms. This case is only the most recent in a series of cases in which such forms have been used improperly. The use of such forms is particularly inappropriate when the form is used for a purpose other than the one for which it was created. Here the court used a standard form intended to record the results of first appearance hearings to act as a judgment and sentence on a new and distinct criminal charge. If this court had the power to do so, it would order the Tenth Judicial Circuit to cease and desist in the use of this type of form final order." (footnotes omitted)), disapproved of on other grounds by Plank v. State , 190 So. 3d 594 (Fla. 2016) ; Heath v. State , 840 So. 2d 307, 308-09 (Fla. 2d DCA 2003) (noting that this court discouraged but stopped short of prohibiting the use of snapouts); Peterson , 730 So. 2d at 831 (cautioning the Tenth Circuit against the use of snapouts as sentencing documents).
Using snapouts has fostered needless litigation by defendants who should have been provided with legally conforming sentencing documents at the outset. And while we recognize the docket management pressures our colleagues on the circuit and county courts face, we again emphasize that when not signed by a judge, snapouts are legally insufficient sentencing documents that do not conform to rule 3.986 and cannot serve as either a judgment or sentence. This case is an example of "yet another misused form that may have provided an economic benefit to the circuit court, but only at the expense of an individual's legal rights." Woods , 987 So. 2d at 672. Once again, we discourage the Tenth Circuit's widespread use of the forms.
Affirmed and remanded.
KHOUZAM and BLACK, JJ., Concur.