Davis v. State

• Decision Date: 20 July 1995
• Docket Number: No. 84155,84155
• Citation: 661 So.2d 1193
• Parties: 20 Fla. L. Weekly S362 Darren Keith DAVIS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1193

661 So.2d 1193

20 Fla. L. Weekly S362

Darren Keith DAVIS, Petitioner, v. STATE of Florida, Respondent.

No. 84155.

Supreme Court of Florida.

July 20, 1995.

Rehearing Denied Oct. 25, 1995.

Leo A. Thomas of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for petitioner.

Robert A. Butterworth, Atty. Gen.; James W. Rogers, Sr. Asst. Atty. Gen. and Giselle Lylen Rivera, Asst. Atty. Gen., Tallahassee, for respondent.

OVERTON, Justice.

We have for review State v. Davis, 639 So.2d 1048 (Fla. 1st DCA 1994), based on express and direct conflict with the opinion in Braddy v. State, 520 So.2d 660 (Fla. 4th DCA), review denied, 528 So.2d 1183 (Fla.1988). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. This case involves an alleged sentencing error dispute in which Darren Keith Davis seeks relief from his departure sentence through collateral attack under Florida Rules of Criminal Procedure 3.800(a) and 3.850. For the reasons expressed, we approve the district court's decision in Davis and disapprove the opinion in Braddy, finding that the failure to file contemporaneous written reasons for a departure sentence that is within the maximum period provided by law may not be raised as error for the first time in a collateral relief proceeding.

The relevant facts of this case are as follows. In April 1989, Davis was sentenced to three concurrent terms of life imprisonment for his convictions of second-degree murder, kidnapping, and armed robbery, and to a term of thirty years for his conviction of conspiracy to commit kidnapping, which sentence was to run concurrently with his other sentences. Although the sentences were within the maximum allowed by law, they were outside the range of the sentencing guidelines. The trial judge did not file any written reasons for departing from the guidelines, as required by section 921.001(6), Florida Statutes (1989), until one month after he imposed the sentence. By the time the judge's untimely written reasons were filed, Davis had already filed a notice of appeal, in which he raised issues regarding alleged errors at trial. He did not, however, raise any issue regarding the trial judge's failure to reduce to writing, at the time of sentencing, his reasons for departing from the guidelines. The district court affirmed Davis's sentences, and the mandate in his case was issued on July 12, 1991.

Between the time Davis initially filed his appeal and the time the district court ruled on his appeal, we issued our decision in Ree v. State, 565 So.2d 1329 (Fla.1990), ¹ in which we held that a trial court's failure to reduce to writing, at the time of sentencing, its reasons for departing from a guidelines sentence constituted reversible error. ² Although we granted relief to the defendant in Ree, who had raised the issue in the initial appeal, we stated that the holding in that case was to apply prospectively only. Thereafter, we issued Smith v. State, 598 So.2d 1063 (Fla.1992), limited by Wuornos v. State, 644 So.2d 1000 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1705, 131 L.Ed.2d 566 (1995). In Smith, the State had appealed a downward departure sentence for which the trial judge had provided no written reasons for the departure, and we again addressed how our decision in Ree was to be applied. We acknowledged that the issue in Smith involved the failure to file any written findings rather than the failure to file contemporaneous written findings, but we determined that the case law regarding both situations should be consistent because the two errors are "so closely related." Id. at 1066. We then modified Ree 's prospective-only application by providing that Ree would apply to all cases not yet final when the mandate issued in Ree (July 19, 1990). In the instant case, the district court had issued its decision affirming Davis's sentence one year after the decision in Ree and one year before the decision in Smith. Had Davis's appeal been pending at the time we issued Smith, and had he raised the sentencing error on direct appeal, he could have sought relief under Smith.

In March 1993, Davis filed a motion to vacate and set aside his sentence under rule 3.800 and/or rule 3.850, raising for the first time the claim that the trial judge erred by failing to timely reduce the departure reasons to writing at sentencing. He also contended that his sentence was illegal under rule 3.850, asserting that the trial judge had no jurisdiction to enter the written findings one month after Davis was sentenced because Davis had already filed his notice of appeal. The trial judge granted Davis's postconviction motion on the basis of Ree and Smith, finding that he need not reach the jurisdictional issue.

The State appealed and the district court reversed, based on Blair v. State, 598 So.2d 1068 (Fla.1992). In Blair, which we issued on the same day as our decision in Smith, we stated that the prospectivity requirement in Ree applied "to all cases not final where the issue was raised." 598 So.2d at 1069. Because Davis failed to raise the Ree issue in his initial appeal, the district court determined that the trial court improperly granted the motion to vacate. It specifically stated, however, that its decision would not preclude Davis from again raising the jurisdictional issue before the trial judge.

In this appeal, Davis argues that he was entitled to raise the Ree issue in his postconviction proceeding because rule 3.800(a) allows a court to correct an illegal sentence "at any time" and because our decision in State v. Whitfield, 487 So.2d 1045 (Fla.1986), indicates that a sentencing guidelines departure error may be raised in such a motion. He further contends that he is not precluded from raising the issue in the rule 3.800(a)/3.850 motion because a sentencing error that causes a defendant to be incarcerated for a greater length of time than provided by law constitutes "fundamental" error and, as such, can be raised at any time. In support of this proposition, he cites to Braddy, which provides that the failure to file written reasons for departure from the guidelines is fundamental error, which can be heard in any and every legal manner possible.

Braddy deals with the failure to file any written findings, which is distinct from the failure to file contemporaneous findings. The two errors, however, are closely related and based on the same premise. For example we determined in State v. Jackson, 478 So.2d 1054 (Fla.1985), receded from on other grounds, Wilkerson v. State, 513 So.2d 664 (Fla.1987), that the findings for a departure sentence must be in writing under section 921.001(6), Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.701(d)(11). We also found that the record itself is not sufficient to support the findings under the statute given that the writing requirement requires judges to think through their decisions in sentencing defendants and that appellate courts must be able to accurately determine the reasons for a departure sentence. At that time, the statute required that a departure sentence must be "explained in writing" and the rule required that a departure sentence must be "accompanied by a written statement." Sec. 921.001(6), Fla.Stat. (1983); rule 3.701(d)(11). Two weeks later, relying on our decision in Jackson, we stated that the trial court, contemporaneously with the sentencing, must provide written reasons for a departure sentence. State v. Oden, 478 So.2d 51 (Fla.1985). It was these two decisions that we relied on in reaching our decision in Ree. Further, as we acknowledged in Smith, the failure to file any written findings and the failure to file contemporaneous written findings are closely related and should follow the same path. As such, the cases governing the raising of these errors should be consistent. Having said this, we turn to Davis's contentions.

First, we address Davis's claim that his sentence is "illegal." Clearly, an illegal sentence is one that can be addressed at any time. Bedford v. State, 633 So.2d 13 (Fla.1994). We have previously rejected, however, the contention that the failure to file written findings for a departure sentence constitutes an illegal sentence. See Gartrell v. State, 626 So.2d 1364 (Fla.1993) (a sentence to less than the guidelines range without written reasons is not an illegal sentence within the meaning of rule 3.800(a)). We reiterate that conclusion here, concluding that an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. Although we did indicate in dicta in Whitfield that the absence of statutorily mandated findings renders a sentence illegal, we did so in summarizing case law that dealt with whether a contemporaneous objection was necessary to preserve an issue for appeal. The actual error at issue in Whitfield, however, involved an erroneous scoresheet calculation that we found was to be addressed under rule 3.800. ³ See rule 3.800(a) ("A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet.") (emphasized language added to rule 3.800(a) in Whitfield ). In light of the contradiction between the holding in Gartrell and our statements in Whitfield, we recede from Whitfield to the extent that the dicta in that case can be read as holding that the failure to file written findings for a departure sentence constitutes an illegal sentence. Only if the sentence exceeds the maximum allowed by law would the sentence be illegal.

Next, we address Davis's contention that the failure to file contemporaneous written findings constitutes fundamental error that can be raised for the first time on collateral review. We recently concluded in State v. Brown, 655 So.2d 82 (Fla.1995), that the defendant in that case could raise this issue through a motion for postconviction relief. Brown's appeal was pending at the...