AMEND. TO FLA. RULES OF CR. PROC. 3.111 (e)

• Decision Date: 12 November 1999
• Docket Number: No. 95,707.,95,707.
• Citation: 761 So.2d 1015
• Parties: 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.
• Court: Florida Supreme Court

761 So.2d 1015

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.

No. 95,707.

Supreme Court of Florida.

November 12, 1999.

Opinion on Grant of Rehearing January 13, 2000.

Chris W. Altenbernd, Chair, The Criminal Appeal Reform Act Committee, Second District Court of Appeal, Tampa, Florida; Jerome C. Latimer, Chair, St. Petersburg, Florida, Robert R. Wills, immediate Past-Chair, Fort Lauderdale, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida on behalf of The Florida Bar Criminal Procedure Rules Committee; Susan W. Fox, Chair, of MacFarlane, Ferguson & McMullen, Tampa, Florida, and Deborah K. Brueckheimer, Vice-Chair, Assistant Public Defender, Bartow, Florida, on behalf of The Florida Bar Appellate Court Rules Committee; and Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, Florida, on behalf of the Public Defender, Second Judicial Circuit, for Petitioner.

Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, Miami, Florida, on behalf of the Public Defender, Eleventh Judicial Circuit; and Blaise Trettis, Executive Assistant Public Defender, Melbourne, Florida, Responding.

PARIENTE, J.

In December 1998, Chief Justice Harding created the Criminal Appeal Reform Act Committee (the CARA Committee)¹ to review all rules of procedure affected by the Criminal Appeal Reform Act of 1996 (the Act) in light of unexpected problems that arose in implementing the intent of the Act, especially with regard to the early detection and correction of sentencing errors. The Court urged the Committee to expedite its deliberations, but to elicit input from all other related rules committees and from attorneys with expertise in the field.² Accordingly, the CARA Committee filed this emergency petition requesting this Court to consider amendments to the Florida Rules of Criminal and Appellate Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The comments received were overwhelmingly in favor of these amendments as providing a truly effective mechanism for the trial courts to correct sentencing errors at their earliest opportunity. After considering the comments received in response to the proposed amendments, we hereby adopt the rules proposed by the CARA Committee as set forth in the appendix to this opinion.

In Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1104 (Fla.1996), this Court considered the effect of two primary provisions of the Act:

(3) 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 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.

(4) If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.

§ 924.051(3)-(4), Fla. Stat. (Supp.1996) (emphasis supplied). The Legislature intended that "all terms and conditions of direct appeal and collateral review be strictly enforced ... to ensure that all claims of error are raised and resolved at the first opportunity." § 924.051(8), Fla. Stat. (Supp.1996).

In response to the Act, this Court adopted Florida Rule of Criminal Procedure 3.800(b), "[b]ecause many sentencing errors are not immediately apparent at sentencing, [and] we felt that this rule would provide an avenue to preserve sentencing errors and thereby appeal them." Amendments, 696 So.2d at 1105 (emphasis supplied). Thus, we adopted rule 3.800(b) to accomplish two purposes. First, we intended to provide defendants with a mechanism to correct sentencing errors in the trial court at the earliest opportunity, especially when the error resulted from a written judgment and sentence that was entered after the oral pronouncement of sentence. Second, we intended to give defendants a means to preserve these errors for appellate review.

Rule 3.800(b) currently allows criminal defendants to file a motion to correct sentencing errors in the trial court within thirty days after the sentencing proceeding.³ Operating in tandem with rule 3.800(b), Florida Rule of Appellate Procedure 9.020(h) delays the "rendition" of the final order until the trial court disposes of the rule 3.800(b) motion. Thus, the defendant currently has thirty days to file the notice of appeal after the trial court rules on any sentencing error preserved through a rule 3.800(b) motion.

These statutory and rule changes embodied a policy decision intended to "relieve the workload of appellate courts" and to "place correction of alleged errors in the hands of the judicial officer [the trial judge] best able to investigate and to correct any error." Maddox v. State, 708 So.2d 617, 621 (Fla. 5th DCA 1998) (en banc), review granted, 718 So.2d 169 (Fla. 1998). Unfortunately, these statutory and rule changes did not have their intended effect of conserving the judicial resources of the appellate courts, while at the same time providing for sentencing errors to be addressed at their earliest opportunity in the trial courts.

The Act has opened an entirely new debate in the appellate courts as to what constitutes fundamental sentencing error on appeal and whether any unpreserved sentencing error, no matter how egregious, can be considered on appeal. The Fifth District has broadly stated that no unpreserved sentencing error will be considered fundamental or correctable on direct appeal. See Maddox, 708 So.2d at 620

. In contrast, the First, Second, Third, and Fourth Districts continue to recognize that errors in sentencing can constitute "fundamental error" that can be raised on direct appeal despite the lack of preservation.

See Nelson v. State, 719 So.2d 1230 (Fla. 1st DCA 1998) (en banc); Bain v. State, 730 So.2d 296 (Fla. 2d DCA 1999) (en banc); Harriel v. State, 710 So.2d 102 (Fla. 4th DCA 1998) (en banc); Jordan v. State, 728 So.2d 748 (Fla. 3d DCA 1998),

review granted, 735 So.2d 1285 (Fla.1999). This Court has accepted jurisdiction over the Fifth District's decision in Maddox, and dozens of other related cases, in which this Court has been asked to resolve this split in the districts by determining whether unpreserved sentencing errors can be raised on direct appeal.

In reaching its conclusion that no sentencing error should be considered fundamental, the Fifth District rhetorically asked "why should there be `fundamental' error where the courts have created a `failsafe' procedural device to correct any sentencing error or omission at the trial court level?" Maddox, 708 So.2d at 620. Unfortunately, however, as the CARA Committee discovered, the reality is that rule 3.800(b) as it is currently written has fallen far short of the goal of providing a "failsafe" method for defendants to seek to have sentencing errors corrected in the trial court and thereby preserve them for appellate review. The plethora of appellate cases addressing the issue of whether unpreserved sentencing error may be presented on appeal demonstrates that despite the availability of the present rule 3.800(b), many sentencing errors have gone unnoticed and uncorrected by trial counsel, the prosecutor, and the trial court. 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.⁴ 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.

After consideration of the proposed amendments and the comments received from interested parties, we conclude that adoption of these amendments will provide an effective, and hopefully more "failsafe," procedural mechanism through which defendants may present their sentencing errors to the trial court and thereby preserve them for appellate review. The CARA Committee stated it was aware that the Court had considered and rejected a proposal in 1996 that would have allowed appellate courts to relinquish jurisdiction to trial courts in order to obtain rulings on unpreserved sentencing errors. See Amendments, 696 So.2d at 1104. However, rather than suggesting relinquishment that would result in increasing the appellate workload, the CARA Committee concluded...