An appellate court must affirm a conviction and sentence in an Anders appeal if the sentencing error was not preserved and the period for direct appeal correction has passed.
During an independent review of an Anders appeal, the appellate court identified a fundamental sentencing error where the defendant received a life sentence exceeding the statutory maximum for his cocaine trafficking offense. The defendant had not preserved this error through objection or a motion to correct sentence, and the case was past the window period for direct appeal correction. The court questions whether it can correct the illegal sentence on direct appeal or must affirm without prejudice to collateral relief. Applying the Criminal Appeal Reform Act and relevant procedural rules, the court concludes it must affirm the conviction and sentence. It certifies a question of great public importance to the Florida Supreme Court regarding the proper procedure for handling unpreserved fundamental errors in Anders appeals.
At page 1189 Determining appellate review of unpreserved sentencing errors8 citing cases“with misgivings and concerns for how it as an appellate court can faithfully carry out its constitutional duties pursuant to anders and causey .”
- Tyrone K. Powell v. State of Florida, 167 So. 3d 392 (Fla. 2015).published The Fifth District first expressed its “misgivings and concerns” in Washington v. State, 814 So. 2d 1187, 1189-90 (Fla. 5th DCA 2002), and certified to this Court essentially the same question certified in Powell.
- ALB v. State, 23 So. 3d 190 (Fla. 1st DCA 2009).published “misgivings and concerns”
- Starkes v. State, 10 So. 3d 1109 (Fla. 1st DCA 2009).published “misgivings and concerns”
- AFE v. State, 853 So. 2d 1091 (Fla. 1st DCA 2003).publishedDespite that fundamental sentencing error, the Washington court concluded that it was constrained to affirm under Maddox v. State, 760 So.2d 89 (Fla. 2000), the Criminal Appeal Reform Act of 1996, and the rules adopted to implement that ac…
- Christopher S. Busbee v. State of Florida, 164 So. 3d 150 (Fla. 1st DCA 2015).publishedSee A.L.B. v. State, 23 So.3d 190 (Fla. 1st DCA 2009) (citing Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002), and stating that “[l]ike the Washington court, we conclude that the absence of any objection at the time of senten…
- Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006).publishedSee Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002); Drayton v. State, 791 So.2d 522, 524 (Fla. 4th DCA 2001).
- Jeremy E. Lynn Vs State of Florida, 350 So. 3d 832 (Fla. 5th DCA 2022).publishedSee, e.g., Washington v. State, 814 So. 2d 1187, 1189 (Fla. 5th DCA 2002).
Other citing cases
- Collando-Pena v. State, 141 So. 3d 229 (Fla. 1st DCA 2014).published
- Colon v. State, 869 So. 2d 1290 (Fla. 4th DCA 2004).published
- Henderson v. State, 853 So. 2d 603 (Fla. 5th DCA 2003).published
- Edson v. State, 831 So. 2d 798 (Fla. 5th DCA 2002).published
v.
STATE of Florida, Appellee.
[*1188] James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
ON MOTION FOR REHEARING
SHARP, W., J.
We grant the state's motion for rehearing, withdraw our previous opinion dated November 30, 2001, and substitute the following opinion, which certifies to the Florida Supreme Court a question of great public importance.
As set forth in our withdrawn opinion, this was an Anders appeal.[1] Pursuant to the constitutional mandate of Anders and the directives of the Florida Supreme Court in State v. Causey, 503 So.2d 321 (Fla.1987), we undertook an independent review of the record. We discovered a serious sentencing error,[2] and requested supplemental briefing from the public defender and the attorney general.
Both the public defender and the attorney general agreed Washington had received an illegal sentence. He had been convicted of trafficking in cocaine and the amount of contraband was more than 200 grams and less than 400 grams. The court sentenced him to a term of life imprisonment as an habitual offender and imposed a $100,000 fine. This sentence is legal under the present version of the drug trafficking statute, except that the court would be required to sentence the defendant to a "mandatory minimum term of imprisonment of 7 years." § 893.135(1)(b)1.B, Fla. Stat. (2000). However, this statute did not become effective until October 1, 2000, and Washington committed his offense on March 24, 1999.
The applicable version of the drug trafficking statute in this case was section 893.135(1)(b)1.B, Fla. Stat. (1997).[3] That statute required the defendant to be sentenced pursuant to the sentencing guidelines and pay a fine of $100,000. Washington should not have been sentenced to a life term as an habitual offender.[4] His maximum guideline sentence was thirty years, and the life sentence he received exceeded the statutory maximum provided by law. In this case, Washington's life sentence is an illegal sentence and constitutes[*1189] fundamental error. See State v. Mancino, 714 So.2d 429 (Fla.1998).
The sticky issue in this case is what the appellate court should do about fundamental sentencing errors, such as the one in this case, in the context of Anders and Causey. The state argues the appellate court's hands are tied to correct the fundamental error on direct appeal because Washington failed to preserve the sentencing issue. See Maddox v. State, 760 So.2d 89 (Fla.2000); Geri v. State, 797 So.2d 605, 606 (Fla. 1st DCA 2001). He did not object at sentencing or file a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b), and this case is past the "window period" carved out in Maddox.
Pursuant to Maddox and the new rules adopted by the Florida Supreme Court to implement the Criminal Appeal Reform Act of 1996,[5] it appears we must affirm Washington's convictions and sentence, without prejudice for him to seek appropriate post-conviction relief. Stinson v. State, 785 So.2d 759 (Fla. 1st DCA 2001); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000).
We reach this conclusion, however, with misgivings and concerns for how we as an appellate court can faithfully carry out our constitutional duties pursuant to Anders and Causey.[6] If we see a fundamental sentencing error in an Anders appeal, which has not been preserved, should we continue to order briefs from the public defender and attorney general, but deny relief, even though that contradicts longestablished appellate practice? Bedford v. State, 633 So.2d 13 (Fla.1994); Sanders v. State, 698 So.2d 377, 378 (Fla. 1st DCA 1997). Must we, in every such case, write a short affirmance pointing out the possible modes of collateral relief the defendant could possibly pursue? Would that be sufficient under the Anders and Causey mandates, since defendants are not entitled to counsel in collateral proceedings,[7] and may not understand or know how to seek collateral relief? As a practical matter, is this procedure truly economic of judicial time and energy, since it will require duplicate consideration by another set of courts to resolve a matter we could address instanter? Does the Criminal Appeal Reform Act truly mandate this result? Section 924.051(3) provides:
An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review[*1190] of the complete record that prejudicial error occurred and was properly preserved in the trial court, or if not properly preserved, would constitute fundamental error. (emphasis supplied).
Accordingly, we certify to the Florida Supreme Court the following question of great public importance:
NOTWITHSTANDING MADDOX AND THE CLOSURE OF THE WIDOW PERIOD, SHOULD AN APPELLATE COURT CORRECT AN ILLEGAL SENTENCE IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(B) AND FLORIDA RULE OF APPELLATE PROCEDURE 9.140(D), AND WHICH WAS DISCOVERED BY THE COURT'S INDEPENDENT REVIEW? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAUSEY IN SUCH A CASE?
Accordingly, we grant the state's motion for rehearing, substitute this opinion for our prior opinion, certify the above question to the Florida Supreme Court and affirm this cause without prejudice to seek collateral relief below.
Motion for Rehearing GRANTED; QUESTION CERTIFIED; AFFIRMED.
COBB and ORFINGER, R.B., JJ., concur.