AMEND. TO CR. PROC. RULES 3.670 & 3.700 (b)

• Decision Date: 12 November 1999
• Docket Number: No. 95117.,95117.
• Citation: 760 So.2d 67
• Parties: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.670 AND 3.700(b).
• Court: Florida Supreme Court

760 So.2d 67

AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3..700(b).

No. 95117.

Supreme Court of Florida.

November 12, 1999.

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; Jerome C. Latimer, Chair, St. Petersburg, Florida, and Robert R. Wills, Past Chair, Ft. Lauderdale, Florida, for The Florida Bar Criminal Procedure Rules Committee, Petitioner.

Michael A. Catalano, Miami, Florida; Diane M. Matousek, Clerk of the Seventh Judicial Circuit, DeLand, Florida; David R. Ellspermann, Clerk of the Fifth Judicial Circuit, Ocala, Florida; Harvey Ruvin, Clerk of the Eleventh Judicial Circuit, Miami, Florida; Blaise Trettis, Executive Assistant Public Defender, Melbourne, Florida; Henry W. Cook, Clerk of the Fourth Judicial Circuit, Jacksonville, Florida; James C. Watkins, Clerk of the Fifth Judicial Circuit, Tavares, Florida; Barbara T. Scott, Clerk of the Twentieth Judicial Circuit (Charlotte County), Punta Gorda, Florida; The Honorable Donald R. Moran, Jr., Chief Judge, Fourth Judicial Circuit, Jacksonville, Florida; Jed Pittman, Clerk of the Sixth Judicial Circuit, Dade City, Florida; Charlie Green, Clerk of the Twentieth Judicial Circuit (Lee County), Fort Myers, Florida; Karen E. Rushing, Clerk of the Twelfth Judicial Circuit, Sarasota, Florida; Fred W. Baggett of Greenberg, Traurig, P.A., Tallahassee, Florida, on behalf of the Florida Association of Court Clerks & Comptrollers, Inc., Responding.

PER CURIAM.

The Rules of Criminal Procedure Committee has filed an emergency petition to amend (1) Florida Rule of Criminal Procedure 3.670 to require the clerk of court to serve the defendant and counsel for the defendant and the state with a copy of the judgment and sentence within fifteen days of rendition, and (2) Florida Rule of Criminal Procedure 3.700(b) to require the trial court to pronounce at the time of sentencing the amount of jail time credit the defendant is to receive. We have jurisdiction. Art. V, § 2(a), Fla. Const. The proposed amendments were published for comments. A number of comments have been received, the majority of which are from clerks of court who oppose certain aspects of the rules committee's proposals. Oral argument on these proposals was held the same day as argument on a related petition to amend Florida Rule of Criminal Procedure 3.800 and various other rules filed by the Criminal Appeal Reform Act Committee. See Amendments to Fla. Rules of Crim. Pro. 3.111(e) & 3.800 & Fla. Rules of App. Pro. 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.1999).

The Criminal Procedure Rules Committee proposes these amendments in response to a request from this Court to consider rule changes suggested by Judge Martha Warner. In a letter to the Court, Judge Warner points out that in many circuits defendants are not being served with a copy of the written judgment and sentence and there is no rule requiring such service. Judge Warner further points out that rule 3.800(b), which allows a motion to correct a sentencing error to be filed in the trial court within thirty days after the rendition of the sentence, is premised on the assumption the defendant will receive a copy of the sentencing order in sufficient time to review it for accuracy and seek relief under rule 3.800(b) should a sentencing error be identified. With this assumption in mind, Judge Warner suggested that a rule should be adopted requiring that the defendant be served with of a copy of the judgment of conviction and sentence. Judge Warner also suggested that the subject of jail credit be addressed at the time of sentencing, by having the state calculate the jail credit for time served and placing it on the scoresheet. This would give the defendant the opportunity to question jail time credit at the time of sentencing or move to correct pursuant to rule 3.800(b) if a mistake has been made. Judge Warner's suggestions were precipitated in part by this Court's decision in State v. Mancino, 714 So.2d 429 (Fla.1998), where we held that a claim of credit for jail time served is cognizable in a rule 3.800(a)¹ motion to the extent that the record reflects an undisputed entitlement to credit for time served and a sentence that fails to give such credit. Although it is not clear from the opinion, Mancino presumably sought relief under rule 3.800(a) because the sentencing error was not discovered within the thirty-day period in which to bring a rule 3.800(b) motion to correct.

In 1996, this Court adopted a new rule 3.800(b) in response to the Criminal Appeal Reform Act of 1996. See Amendments to Fla. Rules of App. Pro., 696 So.2d 1103, 1105 (Fla.1996); Amendments to Fla. Rule of App. Pro. 9.020(g) & Fla. Rule of Crim. Pro. 3.800, 675 So.2d 1374 (Fla.1996). As relevant here, the Act conditions the right to appeal a judgment or sentence "upon the preservation of a prejudicial error or the assertion of a fundamental error." 696 So.2d at 1105; see also § 924.051(3), Fla. Stat. (Supp.1996). In response to that limitation, this Court adopted a new subdivision (b) authorizing the filing of a motion to correct sentence in the trial court. It was our intent to allow defendants to correct sentencing errors as soon as possible in the trial court, while at the same time providing a mechanism for preserving sentencing errors which may not be apparent at the time of sentencing. See 696 So.2d at 1103-05. In this regard, the new subdivision (b) was added in order to allow criminal defendants to file a motion to correct sentencing errors in the trial court within thirty days² after the sentence is rendered. Id. at 1105. We also amended Florida Rule of Appellate Procedure 9.020(h) (formerly 9.020(g)) to delay the "rendition" of the final order for purposes of appeal until the trial court disposes of the rule 3.800(b) motion. See 675 So.2d at 1375. Thus, under the rules as amended in 1996, the defendant has thirty days to file the notice of appeal after the trial court rules on any sentencing error timely raised in a rule 3.800(b) motion.

As Judge Warner points out, these rules were premised on the assumption that a defendant or his or her counsel will receive a copy of the sentencing order and be able to review it in sufficient time to file a motion to correct any sentencing error that may be found. See 696 So.2d at 1105 (expanding time to file motion from ten to thirty days because attorneys were not timely receiving copies of the sentencing order). However, it seems that in the majority of circuits defendants are not receiving copies at least in part because the written judgment and sentence is not entered at the time of sentencing when the parties are present; and there is no rule requiring that they be served with copies of the judgment and sentence within a specified time period that would allow for the timely filing of a rule 3.800(b). Therefore, many times sentencing errors are not detected until appellate counsel reviews the transcripts of the sentencing hearing and the written judgment and sentence. At that point, counsel is left to argue that the error constitutes fundamental error under section 924.051(3), Florida Statutes (1997).³See, e.g., Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998)

(recognizing that sentencing errors can constitute fundamental error that can be raised for the first time on direct appeal); Bain v. State, 730 So.2d 296 (Fla. 2d DCA 1999) (same); Jordan v. State, 728 So.2d 748 (Fla. 3d DCA 1998) (same), review granted, 735 So.2d 1285 (Fla.1999); but see Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998) (holding unpreserved sentencing error will not be considered fundamental error correctable on direct appeal), review granted, 718 So.2d 169 (Fla.1998). This state of affairs is clearly contrary to the rule's original purpose—to relieve the appellate courts' workload by ensuring that sentencing errors are first addressed by the trial court. See 696 So.2d at 1103.

In Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.1999), which we also issue today, we recognize this apparent failure of rule 3.800(b) to provide "a `failsafe' method to detect, correct and preserve sentencing errors." Id. at 1017. In that case, we adopt amendments which were proposed by the Criminal Appeal Reform Act Committee (CARA Committee). The CARA Committee was appointed by Chief Justice Harding in January 1999 to review rules of procedure affected by the Criminal Appeal Reform Act and to propose amendments to the rules to better implement the Act as it relates to sentencing. Most significantly, as relevant here, we have amended rule 3.800(b) to further expand the period in which a motion to correct a sentencing error can be filed in the trial court and to allow the State to file a rule 3.800(b) motion to correct sentence if the correction would benefit the defendant. Id. at 1017-19. As amended, rule 3.800(b)(1) continues to provide for the filing of a motion to correct a sentencing error in the trial court during the time allowed for the filing of a notice of appeal. However, under new rule 3.800(b)(2), if a notice of appeal has been filed, a motion to correct a sentencing error also can be filed in the trial court any time up until the party's first appellate brief is filed. Id. at 1018. The deadline for filing the first appellate brief is then extended until ten days after the supplemental record from the proceedings held on the motion to correct the sentencing error is transmitted. Id. The later amendments allow appellate counsel to seek to correct and thereby preserve sentencing errors that are discovered while preparing for appeal. In adopting those amendments, we hoped to "provide an effective, and hopefully more `failsafe,' procedural mechanism through which defendants can present their sentencing errors to the trial court and thereby preserve them for appellate review." Id. at 1017-18. The amendments we...