Denson v. State, 97-00611

• Decision Date: 13 May 1998
• Docket Number: No. 97-00611,97-00611
• Court: Florida District Court of Appeals
• Parties: 23 Fla. L. Weekly D1216 Jonathan DENSON, Appellant, v. STATE of Florida, Appellee.

Page 1225

711 So.2d 1225

23 Fla. L. Weekly D1216

Jonathan DENSON, Appellant, v. STATE of Florida, Appellee.

No. 97-00611.

District Court of Appeal of Florida Second District.

May 13, 1998.

Rehearing Denied June 17, 1998.

Shea T. Moxon of Richard Escobar, P.A., Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Jonathan Denson appeals sentences imposed on January 2, 1997, in four criminal cases. We have jurisdiction over this appeal pursuant to the Criminal Appeal Reform Act because Mr. Denson preserved a sentencing issue for appeal. See ch. 96-248, Laws of Fla.; § 924.051(3), Fla. Stat. (Supp.1996). We affirm the trial court's ruling on the preserved issue.

In addition to this preserved error, Mr. Denson's attorney has briefed two serious, patent legal errors in his sentences that were not preserved in the trial court. The trial court imposed two habitual offender sentences that are clearly illegal. Moreover, the written sentences are five years longer than the oral pronouncement because the written sentences run consecutively rather than concurrently.

Although he would not have had assistance from court-appointed counsel, ¹ Mr. Denson could have challenged the illegal sentence at any time during the pendency of this appeal in the trial court. See Fla. R.App. P. 9.600(d); Johnson v. State, 697 So.2d 1304 (Fla. 2d DCA 1997). ² Even if the oral/written conflict does not result in an illegal sentence, Mr. Denson could still raise this issue post-appeal pursuant to Florida Rule of Criminal Procedure 3.850 as a sentencing error "otherwise subject to collateral attack," or as an issue of ineffective assistance of trial counsel. ³

The question in this case, however, is not whether a prisoner left to his or her own resources may seek correction of such errors, but whether an attorney on direct appeal may identify these serious, patent errors in briefing and whether this court has the discretion to order the trial court to correct such errors. ⁴ Notwithstanding the broad language in section 924.051(3), we hold that when this court otherwise has jurisdiction in a criminal appeal, it has discretion to order a trial court to correct an illegal sentence or a serious, patent sentencing error that is identified by appellate counsel or discovered by this court on its own review of the record. To rule otherwise would be contrary to the intent and goals of the Criminal Appeal Reform Act and would raise substantial constitutional concerns undermining the integrity of the courts.

I. THE PRESERVED ISSUE

On January 2, 1997, the trial court sentenced Mr. Denson in case numbers 93-9284, 94-823, and 94-3707 on violation of probation, and in case number 96-3993 on a new offense. The sentencing hearing in this case was relatively long and included testimony from several witnesses. Prior to the hearing, Mr. Denson's lawyers filed a lengthy sentencing memorandum raising numerous issues. The trial court was unaware of the memorandum until the hearing and never had an adequate opportunity to read it.

At the hearing, the primary legal issue discussed by the parties was whether a prior conviction for conspiracy to deliver cocaine could be a qualifying offense to support treatment as a habitual felony offender for purposes of sentencing on the two 1996 convictions for delivery of cocaine. The trial court held that conspiracy to deliver was not "a violation of [section] 893.13 relating to the purchase or the possession of a controlled substance," see § 775.084(1)(a)(3), Fla. Stat. (1995), and that the offense could be used to qualify Mr. Denson for treatment as a habitual offender. Although the Fifth District has held that possession of cocaine with intent to sell is not a qualifying offense, see Houser v. State, 666 So.2d 158 (Fla. 5th DCA 1995), we agree with the trial court that conspiracy to traffic may be a qualifying offense. There is no question that Mr. Denson preserved this issue for review by his arguments and objections in the trial court, and therefore this court has jurisdiction to review his case pursuant to section 924.051(3).

II. THE UNPRESERVED ISSUES

In case number 96-3993, Mr. Denson pleaded guilty to two counts of delivery of cocaine and two counts of possession of cocaine. At the sentencing hearing, the trial court orally pronounced that Mr. Denson would be sentenced as a habitual felony offender to two concurrent terms of ten years' imprisonment on the possession charges, and to two concurrent terms of fifteen years' imprisonment on the delivery charges, followed by fifteen years' probation. It announced that these sentences were to run concurrently with each other. In case number 93-9284, the trial court sentenced Mr. Denson to five years' imprisonment, and in case numbers 94-823 and 94-7307, it imposed a two-year term of imprisonment in each case. The trial court orally ordered the sentences in the 1993 and 1994 cases to run concurrently with each other and consecutively to the habitual felony offender sentences in the 1996 case. As the trial court explained on the record, it effectively sentenced Mr. Denson to twenty years' imprisonment (with the first fifteen years to be served as a habitual felony offender), followed by fifteen years' probation. Although the defendant's lengthy trial memorandum argued that the law did not allow a habitual sentence for possession of cocaine, the defendant failed to request and receive a ruling on this issue at the hearing.

The written sentences order the two habitual felony offender sentences on the 1996 delivery convictions to run consecutively to the two habitual felony offender sentences on the 1996 possession offenses and the sentences imposed in the 1993 and 1994 cases. The written sentences also reflect that the two sentences on the 1996 possession convictions will run concurrently with the sentences in the 1993 and 1994 cases. The effect of the written sentences is imprisonment for twenty-five years as a habitual felony offender, followed by a fifteen-year term of probation.

This sentencing scenario presents two serious unpreserved sentencing errors. First, as the State concedes, there is no legal authority permitting a ten-year term of imprisonment or a habitual offender sentence for the third-degree felony of possession of cocaine. See § 775.084(1)(a)(3), Fla. Stat. (1995); Belton v. State, 673 So.2d 880 (Fla. 2d DCA 1996). ⁵ Second, the five-year increase in the term of imprisonment in the written sentence clearly violates the rule that the written sentence must conform to the oral pronouncement. See D.F. v. State, 650 So.2d 1097 (Fla. 2d DCA 1995). Prior to the Criminal Appeal Reform Act, we would have ordered the trial court to correct both of these errors, even though they were unpreserved.

III. THE CRIMINAL APPEAL REFORM ACT

The legislative and judicial efforts to reform the criminal appeals process over the last several years have been necessary and productive. The Fifth District has recently discussed the Criminal Appeal Reform Act and the supreme court's related changes in the rules of criminal and appellate procedure. See Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998). This opinion will not repeat the thorough discussion in Maddox, and we have no need to decide whether we agree with the entirety of its holding. It is worth emphasizing, however, that the intent and the goals of this collective effort have been to minimize frivolous appeals, to maximize the efficiency of the appellate system, and to place the task of correcting most sentencing errors in the lap of the circuit court. In no district are those goals more important than in the Second District with its chronic backlog of criminal appeals.

The critical statutory amendment affecting our jurisdiction and scope of review is contained in section 924.051(3). That provision 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.

We read the first sentence as an effort to restrict our jurisdiction over the case. An appeal "may not be taken," i.e., the appellate court has no jurisdiction to hear an appeal, unless a prejudicial error is either preserved or is fundamental. The supreme court addressed this limitation on our jurisdiction in In re Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla.1996), and held that the courts will abide by reasonable legislative restrictions on a defendant's constitutional right of appeal.

The second sentence attempts to restrict either our scope of review or our standard of review because, even if we have jurisdiction, the legislature is attempting to prohibit the court from reversing a sentence on an issue concerning a prejudicial error that is neither preserved nor fundamental. ⁶ As a general rule, this statute comports with the appellate courts' own customary restrictions on their standard of review. However, there are rare occasions when the courts--for the orderly administration of justice and for due process concerns--have not followed this general rule. ⁷ In light of the constitutional separation of powers, the legislature cannot unreasonably restrict our scope or standards of review when due process and the orderly administration of justice require that we review such issues. ⁸ When this court already has jurisdiction over a criminal appeal because of a properly preserved issue, we do not avoid a frivolous appeal or achieve efficiency by ignoring serious, patent sentencing errors. Limiting our...