Bain v. State, 97-02007

• Decision Date: 29 January 1999
• Docket Number: No. 97-02007,97-02007
• Citation: 730 So.2d 296
• Parties: Christopher BAIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

730 So.2d 296

Christopher BAIN, Appellant, v. STATE of Florida, Appellee.

No. 97-02007

District Court of Appeal of Florida, Second District.

January 29, 1999.

Rehearing Denied April 16, 1999.

James Marion Moorman, Public Defender, and Jeffrey Sullivan, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

EN BANC

NORTHCUTT, Judge.

This case poses the threshold question of whether we have jurisdiction to entertain an appeal of a criminal sentence when the defendant has failed to preserve any of his asserted errors. Because the issue is one of exceptional importance, and because we recede in part from one of our previous decisions, on our own motion we consider the matter en banc. See Fla. R.App. P. 9.331(a).

In November 1996, the State charged Christopher Bain with robbery in two separate cases. Bain pleaded guilty to robbery, without a weapon, and to grand theft. In his plea agreement, he acknowledged that he qualified for treatment as a habitual violent felony offender. In April 1997, the circuit court sentenced Bain to a fifteen-year minimum mandatory term of imprisonment as a habitual violent felony offender on the robbery charge, and to a concurrent term of ten years' imprisonment as a habitual felony offender on the grand theft charge. On appeal he argues that the minimum mandatory aspect of the robbery sentence exceeds that permitted by the habitual violent felony offender statute. He challenges the grand theft sentence on the ground that the State did not prove that he was a habitual felony offender.

When entering his plea, Bain reserved no issues for appeal. He did not object to his sentences at the time they were imposed, nor did he move to correct them under Florida Rule of Criminal Procedure 3.800(b), or to withdraw his plea. Therefore, Bain did not preserve any alleged sentencing errors for appeal. But he asks us to review the sentences on the ground that they constitute fundamental error. We conclude that we have jurisdiction in this case, and we reverse.

APPELLATE JURISDICTION UNDER THE CRIMINAL APPEAL REFORM ACT

On the question of jurisdiction, we must examine two restrictions imposed by the Criminal Appeal Reform Act of 1996, section 924.051, Florida Statutes (Supp.1996). Subsection (3) of the statute addresses criminal appeals generally, and subsection (4) relates to appeals following pleas of guilty or nolo contendere.

We first consider the general provision. Subsection(3) states:

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.

When analyzing the effect of this provision we make three important assumptions, all of which derive from our supreme court's discussion of the Act when adopting corresponding amendments to Florida Rule of Appellate Procedure 9.140. See Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103 (Fla.1996). There being no case or controversy giving rise to the Amendments decision, the court's remarks arguably were dicta. Certainly, dicta or no, they are subject to being revisited. That being so, we note that, although we abide by these three propositions, we do not necessarily agree with one of them.

Three Assumptions

Our first assumption: The Florida Constitution grants to our citizens the right to appeal, and confers upon the appellate courts jurisdiction to review, all final orders of trial courts. The supreme court expressed this conclusion in Amendments, receding from its earlier holding to the contrary in State v. Creighton, 469 So.2d 735 (Fla.1985). The court came to this view because the documentary history of the 1972 revision of article V does not suggest that the revisers intended to remove from the constitution the right to appeal, which had been set forth in the immediately preceding constitution in an arguably more explicit fashion. See Amendments, 696 So.2d at 1104.

There is another reason for finding a constitutional right to appeal all final orders. The constitution, in article V, section 4(b)(1), provides that district courts of appeal shall have jurisdiction to hear "appeals, that may be taken as a matter of right, from final judgments or orders of trial courts...." (Emphasis added.) Standing alone, that language begs the question whether all appeals from final orders, or only some appeals from final orders, may be taken as a matter of right.¹ We believe there is a right to appeal all final orders, because the constitution no-where grants authority to designate which final orders are appealable by right, and which are not. This is a significant omission, considering that article V otherwise specifies who shall make decisions affecting the jurisdiction of the courts. For example, in section 4(b)(1), the supreme court is charged with determining which, if any, nonfinal orders may be appealed. Under section 3(b)(2), the legislature is empowered to grant the supreme court jurisdiction to hear appeals of final orders in bond validation proceedings and to review statewide agency action relating to electric, gas, or telephone utilities' rates or service. Pursuant to section 4(b)(2), the legislature determines whether district courts of appeal have jurisdiction to review administrative action.²

As can be seen, the revisers of article V were quite explicit about who is to shape the jurisdiction of our courts in specific ways. But they did not appoint the arbiter of which final orders are appealable by right. The only reasonable explanation for this is that all final orders are appealable as a matter of right. That construction is consistent with the admittedly imprecise language of article V, section 4(b)(1), with the documentary history of the 1972 constitutional revision, and with the overall scheme of article V.

That same reasoning, however, undermines our confidence in the second assumption we take from the Amendments decision. That is, "the legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants' legitimate appellate rights." Amendments, 696 So.2d at 1104. Assuming the legislature has authority to implement the right to appeal final orders, nevertheless we question whether it has discretion to condition (or limit, or qualify) this right when the constitution has not, regardless of the perceived reasonableness of the conditions. See Sparkman v. State ex rel. Scott, 58 So.2d 431, 432 (Fla.1952) (holding that express or implied provisions of constitution cannot be altered, contracted, or enlarged by legislative enactments).

Our concern is heightened by our recognition that, as previously discussed, the constitution expressly empowers the legislature to affect the courts' jurisdiction in other, specific, respects. But nowhere does it suggest that the legislature may prescribe whether, or under what conditions, a final order may be appealed.³ It is unlikely that the revisers would expressly grant such power to the legislature in some instances but not in others, unless the legislature was meant to have the power only where specified.

Additionally, we believe that two other aspects of the constitution mandate caution when inferring legislative authority to control the power of the judiciary. The first, of course, is the separation of powers doctrine, embodied in the constitution at article II, section 3.⁴ The other is the constitution's guarantee of free access to the courts, contained in the Declaration of Rights, article I, section 21.⁵ This guarantee includes the appellate courts. See Kennedy v. Guarantee Management Services, Inc., 667 So.2d 1013 (Fla. 3d DCA 1996). And it requires that any attempt to limit the right of access to courts must be liberally construed in favor of the right. See Kennedy, 667 So.2d at 1014; Lehmann v. Cloniger, 294 So.2d 344 (Fla. 1st DCA 1974). Surely, in light of these principles, any question about legislative power to encroach upon an important appellate right guaranteed by the constitution must be resolved against the encroachment. The foregoing factors, individually and collectively, cause us to doubt that the legislature may condition, limit, or qualify our jurisdiction to hear appeals of final orders, when the constitution declares that all final orders may be appealed as a matter of right. Despite our reservations, however, we must defer to our supreme court's expression in this regard. Therefore, we assume that the legislature does have this authority, but we exercise our discretion to certify this question to the supreme court. See U.S. Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974).

The last assumption underlying the discussion to follow is that in the Criminal Appeal Reform Act the legislature endeavored to limit the jurisdiction of Florida's appellate courts to entertain appeals from final orders in criminal cases. In Denson v. State, 711 So.2d 1225 (Fla. 2d DCA 1998), we ventured that the first sentence of section 924.051(3) limits our jurisdiction, and that the second sentence endeavors to restrict either our scope of review or our standard of review, or both. This view is not universal among the district courts of appeal. The First, Third, and Fourth Districts appear to treat the entire Act as a nonjurisdictional restriction of the appellate scope and standard of review in criminal cases. See Stone v. State, 688 So.2d 1006 (Fla. 1st DCA 1997), review denied, 697 So.2d 512 (Fla.1997); Neal v. State, 688 So.2d 392 (Fla. 1st DCA 1997), review denied, ...