Carrion v. State

• Decision Date: 16 September 2022
• Docket Number: 2D18-4289
• Citation: 349 So.3d 479
• Parties: Rafael A. CARRION, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

349 So.3d 479

Rafael A. CARRION, Appellant,

v.STATE of Florida, Appellee.

No. 2D18-4289

District Court of Appeal of Florida, Second District.

September 16, 2022

Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Appellee.

BY ORDER OF THE COURT:

Appellant's motion for rehearing and rehearing en banc, filed on October 6, 2021, are denied. Appellant's motions for certification of question of great public importance to the Florida Supreme Court, filed on January 14, 2022, and May 23, 2022, are stricken as untimely. However, upon sua sponte consideration,

IT IS ORDERED that the prior opinion dated September 22, 2021, is withdrawn, and the attached opinion is substituted therefor. No further motions for rehearing will be entertained.

PER CURIAM.

Rafael A. Carrion appeals his judgment and sentences rendered after a jury found him guilty of second-degree murder, aggravated manslaughter, and aggravated child abuse. We affirm Mr. Carrion's convictions and sentences without further comment. We write only to address Mr. Carrion's argument that his judgment must be corrected to indicate that he was found guilty by a jury—an error that the State concedes. Because the issue Mr. Carrion raises was not preserved below, we affirm without prejudice to Mr. Carrion filing an appropriate postconviction motion below.

"[A] trial court may, at any time, correct clerical errors in its judgments." Palmer v. State , 300 So. 3d 1247, 1248 (Fla. 5th DCA 2020) (and cases cited therein). The question before us, however, turns on whether we may grant any relief from a clerical error in the judgment where the issue is raised for the first time on appeal.

With the express approval of the supreme court, we have already answered that question in the negative with respect to errors that are both unpreserved and not fundamental, explaining that pursuant to section 924.051(3), Florida Statutes, a defendant is foreclosed from even raising such an error for the first time on appeal. See Thomas v. State , 725 So. 2d 1148, 1149 (Fla. 2d DCA 1998) ("Because Thomas failed to seek correction of the scrivener's error in the trial court and because the error is not fundamental, he is precluded from raising this issue on appeal."), approved , 763 So. 2d 316 (Fla. 2000).¹ And if a defendant is precluded from even raising such an error, it follows that for us to respond even by simply noting the error, let alone remanding to allow the trial court to take any action on it, would improperly reward noncompliance with that dictate.²

Here, the error "was not preserved either before this appeal by objection in the trial court or while this appeal was pending by the filing of a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)." Perkins v. State , 53 So. 3d 1141, 1141 (Fla. 2d DCA 2011) ; see also Del Rosario v. State , 306 So. 3d 327, 327 (Fla. 3d DCA 2020) (affirming appellant's conviction and sentence without prejudice for appellant to file a rule 3.800(b) motion to correct error in sentencing order despite State's concession of error).³

While Mr. Carrion argues that the scrivener's error is an error in the written judgment and, as such, does not constitute a "sentencing" error that can be corrected by way of a rule 3.800(b) motion, we disagree. The court commentary to rule 3.800 expressly provides that "[a] scrivener's error in this context describes clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution." Fla. R. Crim. P. 3.800 court's commentary to 1999 amendments (emphasis added).

The commentary then defines the term "scrivener's error" as "a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error" and cites a series of cases with examples of scrivener's errors falling under that definition—including two that specifically indicated corrections within a written judgment. Id. (first citing Allen v. State , 739 So. 2d 166 (Fla. 3d DCA 1999) (remanding for the correction of a "scrivener's error" in the written order that adjudicated the appellant in contempt for "jailing polygraph exam" where the record revealed appellant was held in contempt for her failure to testify for the state pursuant to a trial subpoena); then citing Florczak v. State , 712 So. 2d 467, 467 (Fla. 4th DCA 1998) (remanding for correction of a "scrivener's error" where the appellant was acquitted of grand theft but the written judgment stated otherwise)); see also Ashley v. State , 850 So. 2d 1265, 1268 n.3 (Fla. 2003) (referencing rule 3.800(b) and explaining "we have defined scrivener's error as those ‘clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution’ " (citing Amends. to Fla. R. of Crim. P. 3.111(e) & 3.800 & Fla. R. App. P. 9.020(h), 9.140, & 9.600 , 761 So. 2d 1015, 1023 (Fla. 1999) )).

The bottom line is that Mr. Carrion failed to preserve for appellate review his challenge to the scrivener's error in the written judgment, and he does not argue that the error is fundamental. Even if Mr. Carrion is correct that rule 3.800(b) does not afford him an opportunity to preserve such a challenge, this alone does not allow us to ignore the statute.

Accordingly, we affirm Mr. Carrion's judgment and sentences without prejudice to Mr. Carrion filing a motion to correct what the State concedes is a scrivener's error in the judgment.

To the extent that Rivas v. State , 338 So.3d 1098 (Fla. 5th DCA 2022), which issued during the rehearing period in this case, is in conflict with our opinion, we certify conflict. Further, we certify the following question to the Florida Supreme Court:

DOES SECTION 924.051(3), FLORIDA STATUTES (2021), OR THE COMMON LAW CONTEMPORANEOUS OBJECTION RULE PROHIBIT AN APPELLATE COURT FROM NOTING AN UNPRESERVED SCRIVENER'S ERROR WHICH IS APPARENT ON THE FACE OF A JUDGMENT OR SENTENCE AND FROM DIRECTING THE TRIAL COURT TO CORRECT THE ERROR UPON REMAND?

Affirmed.

ROTHSTEIN-YOUAKIM and SMITH, JJ., Concur.

ATKINSON, J., Concurs specially with opinion.

ATKINSON, Judge, Concurring in part.

I concur in the majority opinion insofar as it affirms the judgment on appeal and denies relief. And I join in the certification of the question of great public importance.

I agree that we must deny Carrion's request for correction of the scrivener's error in the judgment because it was not preserved for appellate review. However, I do not agree that such preservation must or even can be effectuated by way of a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) because an error in a judgment is not a "sentencing error." See Fla. R. Crim. P. 3.800(b) (allowing for the filing a "motion to correct any sentencing error" (emphasis added)); cf. Jackson v. State , 983 So. 2d 562, 566–67 (Fla. 2008) ("The rule was intended to permit preservation of errors in orders entered as a result of the sentencing process —in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself.... If it is not a sentencing error, then when a defendant did not object at the time, no motion under rule 3.800(b) is necessary to preserve the issue for appeal; however, the appellate court must apply the stringent fundamental error standard." (emphasis added)); see also Pifer v. State , 59 So. 3d 225, 228 (Fla. 2d DCA 2011) (explaining that a sentencing error is one "in the sentence itself" and that "[r]ule 3.800(b) ‘may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process—that is, orders related to the sanctions imposed.’ " (quoting Jackson , 983 So. 2d at 574 )).

Furthermore, upon remand after a direct appeal, a scrivener's error in neither a judgment nor a sentence can be corrected by way of rule 3.800(b), because such motion may only be filed before or during the pendency of a direct appeal. See Fla. R. Crim. P. 3.800(b)(1) (allowing a defendant to "file a motion to correct a sentencing error" "[d]uring the time allowed for the filing of a notice of appeal of a sentence"); (b)(2) (allowing a defendant to file a "motion to correct a sentencing error" "[i]f an appeal is pending" but requiring it "to be served before the party's first brief is served"); Perry v. State , 849 So. 2d 324, 325 (Fla. 2d DCA 2003) (explaining that "[a] defendant is only entitled to file a rule 3.800(b)(2) motion during the direct appeal of a sentence" and noting that " rule 3.800(b), as a whole, is structured to apply only to a direct appeal of a sentence").

Unlike a "written sentencing order that deviates from the oral pronouncement of sentence," which "constitutes a ‘sentencing error’ subject to rule 3.800(b)" and which can also be rectified "by filing a legally sufficient motion pursuant to rule 3.800(a)," Brown v. State , 225 So. 3d 319, 320–21 (Fla. 3d DCA 2017), a mere scrivener's error in a sentence can only be corrected by way of a 3.800(b) motion before or during a direct appeal. However, that has not stopped some courts from affirming a judgment and sentence "without prejudice to [an] appellant filing a timely motion to correct ... [an unpreserved] scrivener's error." See Del Rosario v. State , 306 So. 3d 327, 327 (Fla. 3d DCA 2020) (citing Perkins v. State , 53 So. 3d 1141, 1141 (Fla. 2d DCA 2011) ); Johnson v. State , 954 So. 2d 702, 702-03 (Fla. 1st DCA 2007) ("Although the written sentence contains a scrivener's error, this Court cannot direct the trial court to correct the error because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuant to ...