Harvey v. State

• Decision Date: 12 June 2003
• Docket Number: No. SC01-1139.,SC01-1139.
• Citation: 848 So.2d 1060
• Parties: Curtis HARVEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

848 So.2d 1060

Curtis HARVEY, Petitioner, v. STATE of Florida, Respondent.

No. SC01-1139.

Supreme Court of Florida.

June 12, 2003.

Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner.

Charles J. Crist, Jr., Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, Florida, for Respondent.

PER CURIAM.

We have for review a decision of a district court of appeal on the following questions, which the court certified to be of great public importance:

Whether the concept of fundamental sentencing error, as discussed in Maddox v. State, 760 So.2d 89 (Fla.2000), applies to defendants who could have availed themselves of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015 (Fla.1999).

Whether an appellant in the First District Court of Appeal, who could have availed himself of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015 (Fla.1999), had an obligation to raise his single subject challenge to the 1995 sentencing guidelines in the trial court, despite the existence of adverse precedent in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), in order to later obtain appellate relief based on Heggs v. State, 759 So.2d 620 (Fla.2000).

Harvey v. State, 786 So.2d 28, 32-33 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We combine the certified questions into one question as follows:

Whether an appellant in the First District Court of Appeal, who could have availed himself of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015 (Fla.1999), may raise his single subject challenge to chapter 95-184, Laws of Florida, as fundamental error for the first time on appeal notwithstanding precedent from the First District Court of Appeal in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), upholding the constitutionality of chapter 95-184, which was later overturned by the Florida Supreme Court during the briefing period.

FACTS

By information, it was alleged that Harvey, with premeditation, attempted to murder his wife Serena Simmons Harvey by shooting her on October 29, 1995. Harvey tendered and the court accepted a negotiated plea of guilty to the lesser included offense of aggravated battery. The agreement provided that Harvey would be adjudged guilty and placed on community control for two years, followed by probation for eight years during which time he was to have no contact with the victim. Harvey was sentenced according to the 1995 sentencing guidelines. On September 2, 1999, Harvey's probation supervisor filed an affidavit alleging that he had breached the conditions of his probation in two respects: (1) changing his address without obtaining consent from his probation officer; and (2) violating the "no contact" special condition. The trial court found that Harvey had violated the "no contact" condition, revoked his probation, and sentenced him to nine years in state prison. The sentencing guidelines score sheet used at sentencing contained a total of 120 sentencing points, which corresponded to a recommended sentencing range of 69 months to 115 months in prison. Notice of appeal was timely filed on December 3, 1999.

On February 10, 2000, appellate counsel for Harvey filed an initial brief in the First District Court of Appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Seven days later, on February 17, 2000, we issued our decision in Heggs v. State, 759 So.2d 620 (Fla.2000), holding that chapter 95-184, Laws of Florida, the 1995 sentencing guidelines under which Harvey was sentenced, violated the single subject provision of article III, section 6, of the Florida Constitution. This decision overruled the First District's opinion in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), quashed, 760 So.2d 924 (Fla.2000), holding that chapter 95-184 did not violate the single subject rule.

In light of Heggs, Harvey's appellate counsel filed a motion to withdraw his Anders brief and filed an amended initial brief on the merits arguing that Harvey was entitled to be resentenced pursuant to Heggs. The First District granted the motion on March 22, 2000, and the State filed its answer brief on April 14, 2000, acknowledging that Harvey was entitled to resentencing under Heggs, which became final on May 4, 2000. Thereafter, this Court issued its decision in Maddox v. State, 760 So.2d 89 (Fla.2000), on May 11, 2000, wherein we held that certain unpreserved sentencing errors were fundamental and could be addressed for the first time on appeal if they fell within the window period between the enactment of section 924.051(3), Florida Statutes (Supp. 1996),¹ and the promulgation of the amended rules in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.1999), reh'g granted, 761 So.2d 1025 (Fla.2000)(hereinafter "Amendments II"). On February 20, 2001, the First District Court of Appeal issued its opinion in Harvey v. State, 786 So.2d 595 (Fla. 1st DCA 2001) ("Harvey I"), wherein the court relied upon Maddox and held that Harvey failed to preserve his single-subject argument under Heggs because neither trial nor appellate counsel sought relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b). Harvey timely filed a Motion For Rehearing, Motion For Certification, and a Motion For Rehearing En Banc, and the State filed a Motion For Clarification. On May 1, 2001, the district court issued an opinion denying rehearing, rehearing en banc, and the State's request for clarification. See Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001)

(on rehearing) ("Harvey II").

ANALYSIS

In light of the Criminal Appeal Reform Act of 1996 (hereinafter the "Act") and our amendments to rule 3.800(b) promulgated by Amendments II, we stated that the goal of the Act was "to ensure that all claims of error [were] raised and resolved at the first opportunity," which was consistent with our policy "that sentencing errors should be handled by the trial courts at the earliest opportunity rather than on appeal or in the postconviction process." Maddox v. State, 760 So.2d 89, 95 (Fla.2000).² Thus, under the new rule 3.800(b)(2) of the Florida Rules of Criminal Procedure, if a notice of appeal has been filed, a motion to correct a sentencing error can also be filed in the trial court at any time until the filing of the first appellate brief.³ We anticipated that the changes to rule 3.800(b) would "eliminate the problem of unpreserved sentencing errors raised on direct appeal"⁴ by giving trial courts the opportunity to address and correct these errors. This would also eliminate the need for an appeal in many cases and reduce the number of postconviction motions related to sentencing and appeals therefrom resulting in the furtherance of judicial efficiency as well as ensuring the integrity of the judicial process. See Amendments II, 761 So.2d at 1019.

In Maddox we made allowances for those defendants who did not have the benefit of the amendment to rule 3.800(b):

The reason that courts correct error as fundamental despite the failure of the parties to adhere to procedural rules requiring preservation is not to protect the interests of a particular aggrieved party, but rather to protect the interests of justice itself. Thus, we conclude that for those defendants who did not have the benefit of our recently promulgated amendment to rule 3.800(b) in Amendments II, during this window period the appellate courts should continue to correct unpreserved sentencing errors that constitute fundamental error. To hold otherwise would neither advance judicial efficiency nor further the interests of justice.

Maddox v. State, 760 So.2d 89, 98 (Fla. 2000) (citation omitted). We thereafter indicated what types of sentencing errors could be addressed on appeal for the first time during the window period. See Maddox, 760 So.2d at 99-110

. Our decision in Maddox advances the concept that fundamental sentencing error does not apply to defendants who could have availed themselves of the amendments to rule 3.800(b) as set forth in Amendments II; however, this concept does not trump fairness and due process and should not be used as a trap.

Harvey argues that to require him to raise a single subject challenge to chapter 95-184, Laws of Florida, by filing a motion to correct sentencing error pursuant to the amended rule 3.800(b) would have been a useless act because at the time that he filed his first appellate brief on February 10, 2000, the First District Court of Appeal's opinion in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), was binding precedent. See Pardo v. State, 596 So.2d 665 (Fla.1992)

(holding that district court decisions are binding upon Florida trial courts). The First District held on rehearing that because Harvey was on notice that this Court had accepted jurisdiction to review the single subject challenge to chapter 95-184, Laws of Florida, in Heggs v. State, 718 So.2d 263 (Fla. 2d DCA),

review granted, 720 So.2d 518 (Fla.1998), his filing of a rule 3.800(b)(2) motion would not have been senseless because it would have preserved the issue. See Harvey II, 786 So.2d at 30-31.

We agree with Harvey that he should not...