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remanding for an amended revocation order in an Anders appeal when the revocation order did not state the condition violated
Summary of this case from Vidana v. StateOpinion
Case No. 2D18-2104
01-15-2020
Todd Lee HAMITER, DOC #551648, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Todd Lee Hamiter seeks review of an order revoking his probation and imposing sentence after he admitted violating a condition of his probation. Following our independent review of the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; see also In re Anders Briefs, 581 So. 2d 149 (Fla. 1991), we affirm without comment the revocation of his probation. As set forth below, however, we remand for entry of a corrected order of revocation, vacate the amended judgment rendered April 25, 2019, and reverse the denial of Hamiter's motion to correct sentencing error. We also certify a question regarding what constitutes a "minor sentencing error" that can be addressed on the merits within an otherwise "no merit" Anders brief.
I. The Anders Appeal
Hamiter admitted that he violated condition 5 of his probation by testing positive for cocaine. The trial court accepted the admission and revoked his probation. Before sentencing, Hamiter moved to withdraw his admission, and the trial court denied the motion. On appeal, Anders counsel recommends review of this issue but asserts that he can find no meritorious argument suggesting reversible error. We agree with counsel's assessment. Because we note that the revocation order fails to specify the condition of probation that the trial court found Hamiter to have violated, however, we remand for the court to enter an amended revocation order specifying that condition. See Freeman v. State, 225 So. 3d 929, 930 (Fla. 2d DCA 2017) (remanding for entry of an amended order of revocation of probation "to reflect the conditions of probation ... that he admitted to violating").
II. Motion to Correct Sentencing Error
On February 13, 2019, after filing his notice of appeal, Hamiter filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B). The sole issue in that motion was the erroneous imposition of an additional $50,000 fine and $2500 five-percent surcharge upon his sentencing for the probation violation.
The trial court filed its order granting the motion on April 16, 2019. As defense counsel argues in the Anders brief, however, the motion had to have been resolved and the order filed no later than April 15, 2019. See Fla. R. Crim. P. 3.800(b)(2)(B) (requiring that the motion be resolved and that the order ruling on the motion be filed within sixty days). We therefore find ourselves in the unhappy position of having to declare the order—and the trial court's ensuing amended judgment rendered April 25, 2019—a nullity and deeming the motion denied. See id.; De La Fuente v. State, 58 So. 3d 394, 395 (Fla. 2d DCA 2011). From the limited record before us, however, we agree with the trial court that the $50,000 fine plus $2500 surcharge was duplicative of a fine that had previously been imposed. Accordingly, we reverse the deemed denial of Hamiter's motion and remand for the trial court to (again) grant the motion and enter an amended judgment.
Although a trial court may extend the sixty-day period for good cause, the trial court did not do so, and the period cannot be extended after it has already run. See McGuire v. State, 779 So. 2d 571, 572 (Fla. 2d DCA 2001).
III. Certified Question
In addressing the merits of Hamiter's sentencing challenge in this context, we take the opportunity to raise the following concern. In In re Anders Briefs, 581 So. 2d at 152, the Florida Supreme Court held that "minor sentencing errors" may be raised in Anders briefs:
[I]ndigents in their first appeal as of right should not lose their Anders rights simply because counsel are able to identify some relatively minor sentencing issues in "no merit" briefs.... Therefore, appellate courts are to follow the Anders procedure fully even when costs or other minor sentencing errors are raised in "no merit" briefs; but the Anders procedure is not appropriate where counsel raise substantial sentencing errors of any kind.
Although In re Anders Briefs generally identified issues related to costs as an example of such minor sentencing errors, neither that opinion nor the original Anders opinion itself provides further guidance regarding the types of errors that fall within that category.
Indeed, the original opinion carves out no exception but appears to contemplate the filing of an Anders brief only where "counsel finds [his client's] case to be wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. 1396 (emphasis added).
In Harrison v. State, 146 So. 3d 76 (Fla. 1st DCA 2014), receded from on unrelated grounds by Mills v. State, 177 So. 3d 984 (Fla. 1st DCA 2015), the First District considered several challenges to "relatively minor sentencing errors"—all related to fines, costs, fees, and surcharges—that had been raised in a "no merit" Anders brief. Defense counsel asserted five errors amounting to about $570 in the defendant's favor.
As usual in the Anders context, the Office of the State Attorney General was not required to file an answer brief and did not do so. In a short opinion, the First District affirmed Harrison's convictions and sentences and remanded for the trial court to correct the erroneously imposed costs "and to afford Appellant adequate notice and an opportunity to object" to one of the assessed costs. See Harrison v. State, 39 Fla. L. Weekly D381, 2014 WL 594352 (Fla. 1st DCA Feb. 17, 2014) (withdrawn and superseded on rehearing).
After that opinion issued, however, the State moved for rehearing, rehearing en banc, and certification of a question of great public importance. See Harrison, 146 So. 3d at 77. Thereafter, the First District withdrew its original opinion and substituted a new one, granting the motion for rehearing in part and granting the request to certify a question of great public importance. Recognizing that rule 3.800(b) (which went into effect after In re Anders Briefs was decided) provides a procedure for addressing sentencing errors during the initial stages of an appeal and that "an appellate court benefits from an adversarial presentation on all claims of error," the First District certified the following question:
CAN APPOINTED COUNSEL CHALLENGE A TRIAL COURT'S DENIAL OF A RULE 3.800(b) MOTION TO CORRECT MINOR SENTENCING ERROR IN AN ANDERS "NO MERIT" BRIEF? IF SO, WHAT STEPS SHOULD APPELLATE COURTS TAKE, CONSISTENT WITH IN RE ANDERS BRIEFS, 581 So. 2d 149 (Fla. 1991), TO ENSURE ADVERSARIAL TESTING OF MINOR SENTENCING ISSUES RAISED BY ANDERS COUNSEL PRIOR TO THE COURT'S DECISION ON THE MERITS OF THOSE ISSUES?
Harrison, 146 So. 3d at 79-81.
The supreme court declined to consider the question. See State v. Harrison, 153 So. 3d 909 (Fla. 2014) (table decision denying the State's petition for review). Consequently, we assume that appointed counsel may continue to challenge a trial court's denial of a rule 3.800(b) motion to correct a minor sentencing error in an Anders "no merit" brief.
The First District has since adopted a procedure involving the issuance of a "Harrison Order," by which it directs the State to respond to a claim of sentencing error raised in an Anders brief. See, e.g., Cousnard v. State, 188 So. 3d 936, 936 (Fla. 1st DCA 2016). As of this writing, this court has no such procedure in place, but nothing prevents an individual panel from ordering a response from the State.
In Harrison, the error was limited to fines, costs, and fees totaling about $570. In Hamiter's case, the amount in question is $52,500. Like our sister court, we question whether it is generally appropriate to correct a "minor sentencing error" without subjecting the asserted error to adversarial testing. But our question here concerns the point at which a "minor sentencing error" becomes a "major sentencing error," which can be a slippery inquiry. See Rashid v. State, 932 So. 2d 1205, 1206 (Fla. 4th DCA 2006) ("There is no bright line test for determining what constitutes a ‘minor sentencing error’ and what makes an error ‘substantial,’ thereby removing it from Anders procedure."). Although the error before us involves costs, which the supreme court identified as a category of minor sentencing error, In re Anders Briefs, 581 So. 2d at 152, and errors concerning costs may pale in significance to errors concerning, for example, length of incarceration, we are not so cavalier (or so cynical as to the likelihood of its recovery in any event) as to lightly dismiss a $50,000-plus mistake as "minor."
We recognize that that question is not so urgent in this particular case, given that the State voiced no objection to the granting of Hamiter's motion below. Cf. Rashid v. State, 932 So. 2d 1205, 1206 (Fla. 4th DCA 2006) ("Here, the state conceded in its response filed in the trial court that the PRR sentence is illegal on the possession count. We see no reason to remove this issue from the Anders procedure in these circumstances.").
IV. Conclusion
We affirm the revocation of Hamiter's probation but remand for entry of a corrected revocation order and for vacatur of the amended judgment rendered April 25, 2019. We reverse the deemed denial of Hamiter's rule 3.800(b)(2)(B) motion to correct sentencing error and remand for entry of an order granting the motion and entry of an amended judgment consistent with that order. Finally, we certify the following question as one of great public importance:
ASSUMING APPOINTED COUNSEL MAY CHALLENGE IN AN ANDERS
"NO MERIT" BRIEF THE TRIAL COURT'S DENIAL OF A RULE 3.800(B)(2) MOTION TO CORRECT A "MINOR SENTENCING ERROR," WHAT CONSIDERATIONS INFORM THE DETERMINATION OF WHETHER THE SENTENCING ERROR IS, IN FACT, "MINOR"?
Affirmed in part; reversed in part; remanded with directions; question certified.
VILLANTI and LUCAS, JJ., Concur.