Opinion
No. 2D99-2481.
Opinion filed February 23, 2001.
Appeal from the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge.
Affirmed.
Scott L. Robbins, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
Appellant, Albert Taylor, challenges his violent career criminal sentence for escape from confinement. Appellant alleges that his sentence is illegal because chapter 95-182, Laws of Florida, has been held to violate the single subject rule. We affirm.
After a jury trial, appellant was found guilty as charged. At sentencing, the trial court held that appellant met the criteria to be sentenced as a violent career criminal pursuant to section 775.084(1)(c), Florida Statutes (1995). The trial court sentenced appellant to a thirty-year minimum mandatory sentence as a violent career criminal. Appellant did not object to his sentence nor did he file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). A timely appeal was not taken, but this court granted appellant's petition for belated appeal. Appellant's initial appellate brief was filed on July 13, 2000.
In State v. Thompson, 750 So.2d 643 (Fla. 1999), the supreme court held that chapter 95-182 violates the single subject rule contained in article III, section 6 of the Florida Constitution. The State concedes that appellant's offense, committed on March 31, 1997, falls within the window period for standing to challenge chapter 95-182 on single subject grounds. See Salters v. State, 758 So.2d 667 (Fla. 2000). The State, however, argues that this issue has not been preserved because appellant failed to object to his sentence during the sentencing hearing and also failed to file a rule 3.800(b) motion to correct sentencing error in the trial court. We agree.
Prior to the supreme court's decision in Maddox v. State, 760 So.2d 89 (Fla. 2000), there was a split among the district courts as to whether unpreserved sentencing errors could be raised on direct appeal in light of the adoption of section 924.051, Florida Statutes (Supp. 1996), enacted as part of the Criminal Appeal Reform Act of 1996, and Florida Rule of Appellate Procedure 9.140(d) which requires that sentencing errors be preserved, either through a contemporaneous objection or the filing of a rule 3.800(b) motion. In Maddox, the supreme court held that certain unpreserved sentencing errors could be raised for the first time on direct appeal. The supreme court stated that:
The reason that courts correct error as fundamental despite the failure of the parties to adhere to procedural rules requiring preservation is not to protect the interests of a particular aggrieved party, but rather to protect the interests of justice itself. See Bain, 730 So.2d at 302. Thus, we conclude that for those defendants who did not have the benefit of our recently promulgated amendment to rule 3.800(b) in Amendments II, during this window period the appellate courts should continue to correct unpreserved sentencing errors that constitute fundamental error. To hold otherwise would neither advance judicial efficiency nor further the interests of justice. However, for those defendants who had available the procedural mechanism of our recently amended rule 3.800(b), we anticipate that the interests of justice should be served by the ability of appellate counsel to first raise the issue in the trial court prior to filing the first appellate brief.
Id. at 98.
The State argues that, under Maddox, after the effective date of the amended rule 3.800(b), a defendant's failure to preserve the issue of a sentencing error by objection at sentencing or the filing of a motion pursuant to the amended rule 3.800(b) precludes the defendant from raising the issue on direct appeal. The Fourth and Fifth Districts have agreed with the State's interpretation of Maddox and have held that defendants who file their first appellate brief after the effective date of the amended rule 3.800(b) can no longer raise unpreserved sentencing errors on direct appeal. See Reese v. State, 763 So.2d 537 (Fla. 4th DCA 2000); see also Capre v. State, 25 Fla. L. Weekly D2492 (Fla. 5th DCA Oct. 20, 2000).
In Reese, the defendant challenged his written sentence as a habitual offender because the trial court failed to orally sentence him as a habitual offender. See Reese, 763 So.2d at 538. Reese failed to object to the sentence or file a motion pursuant to the amended rule 3.800(b)(2). The Fourth District concluded that Reese failed to preserve this issue and declined to even address whether the error was fundamental. The court concluded that since Reese filed his first appellate brief after the effective date of the amendment to rule 3.800(b)(2), he was not entitled to the relief expressed in Maddox. See id. at 538-39.
In Capre, the defendant challenged his sentence asserting that the sentence was vindictive. See Capre, 25 Fla. L. Weekly at D2492. Capre did not raise the issue at sentencing and did not avail himself of the remedy of filing a motion pursuant to rule 3.800(b). The Fifth District dismissed the appeal and stated, "Under Maddox, sentencing errors occurring after the effective date of amended rule 3.800(b), even fundamental ones, are barred if not raised at trial or in post-trial proceedings pursuant to rule 3.800." Id. at D2492-93.
This court in Mancha v. State, 768 So.2d 1178 (Fla. 2d DCA 2000), stated in a footnote that:
In the future, those defendants who have available the procedural mechanism of the recently amended rule 3.800(b), see Amendments to Florida Rules of Criminal Procedure 3.111(c) and 3.800 and Rules of Appellate Procedure 9.010(h), 9.140, and 9.600, 761 So.2d 1015 (Fla. 1999), must first raise the single subject rule challenge in the trial court. See Maddox v. State, 760 So.2d 89, 94 (Fla. 2000).
Id. at 1178 n. 1. Our footnote in Mancha is similar to the footnote the supreme court wrote in Salters v. State, 758 So.2d 667 (Fla. 2000), in which the supreme court stated:
Even though Salters failed to challenge chapter 95-182 on single subject rule grounds in the trial court, we find that such challenge may be properly addressed in this case for the first time on appeal. However, for those defendants who have available the procedural mechanism of our recently amended rule 3.800(b), we would require that such defendants in the future raise a single subject rule challenge in the trial court prior to filing the first appellate brief.
Id. at 668-69 n. 4.
Based on the above cited cases, we believe the supreme court intended to limit its holding in Maddox to those defendants who did not have available to them the procedural mechanism of the amended rule 3.800(b). A major consideration for the supreme court's decision in Maddox was the failure of the prior version of rule 3.800(b) to provide a failsafe method for defendants to raise and preserve sentencing errors. See id. at 97-98. The supreme court anticipated that the amendments to rule 3.800(b) would eliminate the problem of unpreserved sentencing errors.See Maddox, 760 So.2d at 94 (stating that the court anticipates that the amendments to rule 3.800(b) will eliminate the problem). Under the current rule, defendants can now raise sentencing errors in the trial court up until the time the first appellate brief is served. See Fla.R.App.P. 3.800(b)(2). Thus, the amendments to rule 3.800(b) provide appellate counsel with the opportunity to identify any sentencing errors that may have occurred at sentencing and a method to correct those errors and preserve them for appellate review.
The prior version of rule 3.800(b) provided that defendants may file a motion to correct sentencing error within thirty days after the rendition of the sentence. The rule was intended to provide defendants with a mechanism to correct sentencing errors in the trial court at the earliest opportunity and to give defendants a means to preserve those errors for appellate review. See Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103 (Fla. 1996). However, it became apparent that the thirty-day time period was not sufficient to allow defendants the opportunity to identify potential sentencing errors. The supreme court noted several reasons for this failure:
There are multiple reasons why rule 3.800(b) has failed to provide a "failsafe" method to detect, correct and preserve sentencing errors. Apparently, in many circuits the written judgment and sentence is not entered during the sentencing hearing when the defendant and his or her attorney are present. It has been asserted that in many instances defendants and their attorneys do not even receive copies of their sentences within the thirty-day period the present rules allow for filing a motion to correct the sentence. This problem may have arisen in part because there is no present procedural rule that requires service of the written judgment within a specified period of time. Thus, many errors that are only discovered when the written sentence is examined, such as the frequently occurring errors involving deviations between the oral pronouncement and written sentences, may only be detected when appellate counsel is preparing the appellate brief and has the opportunity to review the transcript of the sentencing hearing and the written judgment.
An additional reason that rule 3.800(b) as currently written has failed to provide a workable mechanism for defendants to correct these errors is that sentencing, which once was a straightforward function for trial courts, has become increasingly complex as a result of multiple sentencing statutes that often change on a yearly basis. In addition, trial counsel have come to rely upon appellate counsel to detect these errors and raise them on appeal.
Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015, 1017 (Fla. 1999), reh'g granted, 761 So.2d at 1025 (Fla. 2000) (footnote omitted).
We conclude that defendants alleging sentencing errors must follow the mechanism provided in rule 3.800(b) to correct and preserve those sentencing errors in the trial court. "[The] early correction of these sentencing errors will further the goal of judicial efficiency as well as ensure the integrity of the judicial process." Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015, 1019 (Fla. 1999), reh'g granted, 761 So.2d at 1025 (Fla. 2000). Given the expanded period of time for filing a motion to correct sentencing error, we believe the interests of justice will be protected by requiring that defendants raise such errors in the trial court.
We note that defendants will not be without recourse if they fail to preserve a sentencing error with an objection or by filing a rule 3.800(b) motion prior to filing their first appellate brief. The remedy of Florida Rule of Criminal Procedure 3.800(a) is always available for defendants to seek collateral review of an illegal sentence or incorrect scoresheet calculation. Additionally, if any aspect of a sentence can be considered fundamental error and if counsel fails to object at sentencing or file a rule 3.800(b) motion, the remedy of ineffective assistance of counsel will be available.We, therefore, align ourselves with the Fourth and Fifth Districts and hold that, after the effective date of the amendments to rule 3.800(b), in order for a sentencing error to be raised on direct appeal, the error must first be preserved in the trial court with a contemporaneous objection or by filing a rule 3.800(b) motion to correct sentencing error. In this case, appellant filed his appellate brief after the effective date of the amendments to rule 3.800(b). Since he failed to object in the trial court or file a rule 3.800(b) motion, he has failed to preserve this issue for appellate review.
Parker, A.C.J., and Green, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.