Harris v. State

• Decision Date: 22 June 2007
• Docket Number: No. 2D05-2969.,2D05-2969.
• Citation: 959 So.2d 794
• Parties: Naki HARRIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

959 So.2d 794

Naki HARRIS, Appellant, v. STATE of Florida, Appellee.

No. 2D05-2969.

District Court of Appeal of Florida, Second District.

June 22, 2007.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Naki Harris appeals his convictions and sentences for possession of cocaine and possession of marijuana. We affirm Mr. Harris's convictions without comment. We affirm Mr. Harris's sentences because we conclude that the trial judge's expressed surprise and disagreement with the jury's verdict prior to imposing sentence, if a preserved error, was not a harmful one.

Mr. Harris was charged with possession of cocaine with intent to sell within 1000 feet of a church,¹ possession of contraband in a county detention facility,² possession of marijuana (more than twenty grams),³ and resisting an officer without violence⁴ for events occurring in July 2004. The jury acquitted Harris of possession of contraband in a county detention facility and resisting an officer without violence. For the two remaining offenses, it convicted Mr. Harris of the lesser-included offenses of possession of cocaine⁵ and possession of marijuana (twenty grams or less).⁶

The sentencing hearing occurred immediately following the discharge of the jury. At the beginning of the sentencing hearing, the trial court pointed out that Mr. Harris had twelve prior felony convictions. The assistant state attorney observed that Mr. Harris's record included nine prior convictions for possession of cocaine, a prior conviction for sale of cocaine, and a prior conviction for sale of a counterfeit substance. He also noted that Mr. Harris was released from prison on March 6, 2004, after serving a four-year sentence for possession of cocaine, was arrested for possessing cocaine shortly thereafter, and then committed the current offenses while released on bond in the pending case. The assistant state attorney commented: "I respect the jury's verdicts[;] however, his conduct does show a certain disregard for the law." The trial judge responded that he was "still shaking [his] head" over the jury's verdict. The trial court then asked defense counsel to address the sentencing issues on Mr. Harris's behalf. Defense counsel began, "First of all, from day one Mr. Harris has never denied his guilt in terms of possession. The issue he had was the sale aspect. From day one it was — you know, he was more than willing to own up to the possession charges." The trial judge responded to this assertion:

THE COURT: So tell me what [Mr. Harris's] version of the events are, then, that indicates that he wasn't at least possessing with intent to sell.

DEFENSE COUNSEL: Judge, I don't know why the jury came back with the verdict that they came back with.

THE COURT: Oh, I'll accept that, but you tell me what the innocent version is that he is just a possessor on that date. What the version is out there on the street when he's got ten rocks. When he admits to the cop, which apparently wasn't argued in closing argument that he was out there selling. But in here I think about that. You caught a break on that one. But we didn't hear anything about his admission to the cops that he was selling out there, and they saw him selling, and he's got the additional ten rocks.

So, what was his intent out there? Please, share with me what his innocent intent was.

DEFENSE COUNSEL: Judge, I would not presume to make any comment. I was not there.

The trial court then heard from Mr. Harris, discussed the effect of the other pending case, and stated:

THE COURT: Well, as we always say, or as I always say and what the law says, the purpose of sentencing in Florida is to punish people that commit crimes. He has 12 prior felonies by my count and a bunch of misdemeanors. He has these and then when he was out on bond he was committing other felonies and got arrested on those. This is not somebody, no matter what his protests today are, that is interested in changing his life.

Gus'[s] Bar is one of the worst places in the county that you could be. Standing out there and hawking cocaine on the corner is not somebody that wants to change their life or improve their life situation.

That he's got a little clearer head now after being yanked in the jail for the last ten months after he committed his new felony only reflects how good some of these folks do when they are actually institutionalized.

I adjudicate him guilty. Sixty months in the Department of Corrections on the possession of coke.

Adjudicate and time served on the misdemeanor.

On the other two counts the jury found you not guilty, I adjudge you to be not guilty on those. You may go hence without delay [sic].

Thereafter, the trial court addressed the additional pending charge of possession of cocaine and agreed to sentence Mr. Harris to a two-year term of imprisonment in that case concurrent with the sentence in this case. Mr. Harris appealed the judgments and sentences in this case but did not appeal the concurrent two-year term in the other case.

It is noteworthy that Mr. Harris's trial counsel did not expressly object to the trial court's comments or suggest that the trial court was basing its sentencing decision on improper factual determinations. During this appeal, however, Mr. Harris's appellate counsel filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that the trial court had improperly considered facts during sentencing that were rejected by the jury and that the result was essentially a vindictive sentence. The trial court failed to rule on that motion in a timely manner, and thus the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B), (b)(2).

Initially, we question whether this issue is one that is waived when counsel fails to contemporaneously object or whether it constitutes a "sentencing error" that can be preserved by the filing of a motion pursuant to rule 3.800(b)(2). See Griffin v. State, 946 So.2d 610, 613 (Fla. 2d DCA 2007); see also Jackson v. State, 952 So.2d 613, 616 (Fla. 2d DCA 2007) (Stringer, J., specially concurring). Even if this error was not waived and is therefore preserved by the motion to correct sentence, we are convinced that any error by the trial court in making these comments did not contribute to the sentences and was, at worst, harmless error.

Mr. Harris argues that the trial court's comments establish that it considered the conduct for which the jury acquitted him in determining an appropriate sentence. Citing Doty v. State, 884 So.2d 547, 549 (Fla. 4th DCA 2004), he argues that this is a due process violation that requires resentencing. Both the Third District and the Fourth District have held that when portions of the record reflect that the trial judge may have relied upon such impermissible considerations in passing sentence, the State has the burden to show from the record those considerations "`played no part in the sentence imposed.'" Doty, 884 So.2d at 549 (quoting Epprecht v. State, 488 So.2d 129, 131 (Fla 3d DCA 1986)). The State presents a very limited answer to this point without citing any case law, suggesting only that the issue is unpreserved.

We are not convinced that the trial court relied upon the conduct for which Mr. Harris was acquitted in imposing the five-year sentence for possession of cocaine. Rather, the trial court expressed surprise at the verdict, challenged Mr. Harris's direct assertion that the trial somehow vindicated his pretrial protestations of innocence, and then addressed numerous legitimate sentencing factors before pronouncing sentence. There is no question Mr. Harris's prior convictions and his quick rate of recidivism supported this sentence.

Nevertheless, we need not decide whether to adopt the tests espoused in Doty or Epprecht which would arguably require reversal if the court "may" have considered conduct for which Mr. Harris was acquitted, because we conclude that any error in this case is harmless. That is, we conclude beyond a reasonable doubt that Mr. Harris would have received this five-year sentence based upon his prior record and recidivism, regardless of the trial court's opinion of the jury's verdict in this case.

While we are inclined to agree with Judge Canady's observation in his concurrence that the analysis in Doty is questionable, especially for sentencing under the Criminal Punishment Code, the State has not asked this court to certify conflict with the Fourth District and has made none of the arguments presented in the concurrence. We are unconvinced that the trial court made any findings of fact based on a preponderance of the evidence regarding Mr. Harris's behavior when imposing this sentence. Cf. United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (holding that when the conduct underlying the acquitted charge is proven by a preponderance of the evidence, the sentencing court does not violate due process by considering that conduct). Given our conclusion that Mr. Harris's sentence was not affected by any improper considerations, we are reluctant to embark on a full analysis of the interplay between Doty, Watts, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or to attempt to reconcile the Fourth District's opinions in Howard v. State, 820 So.2d 337 (Fla. 4th DCA 2002), and Evans v. State, 816 So.2d 742 (Fla. 4th DCA 2002), with its opinion in Doty. Rather, we affirm because any error is harmless beyond a reasonable doubt.

Affirmed.

SALCINES, J., Concurs.

CANADY, J., Concurs in result only.

CANADY, Judge, Concurring specially.

Although I agree that the convictions and sentences should be affirmed, I disagree with the majority's analysis of Harris's due process claim.

Unlike the majority, I would reach...