Jackson v. State, No. 2D05-4095.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Canady
• Citation: 952 So.2d 613
• Parties: Bertha JACKSON, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 30 March 2007
• Docket Number: No. 2D05-4095.

952 So.2d 613 Bertha JACKSON, Appellant,
v.
STATE of Florida, Appellee. No. 2D05-4095. District Court of Appeal of Florida, Second District. March 30, 2007.

[952 So.2d 614]

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

CANADY, Judge.

Bertha Jackson appeals her sentence for aggravated battery with a deadly weapon. Jackson argues that the trial court erred in hearing testimony from the victim for purposes of sentencing without defense counsel present in the courtroom. Because Jackson did not preserve the issue for appeal as required by Florida Rule of Appellate Procedure 9.140(e), we affirm her sentence.

The record indicates that the trial court conducted part of the sentencing hearing without defense counsel present by hearing the victim's testimony as it related to sentencing. After the victim testified, the trial court contacted defense counsel by telephone in open court and informed defense counsel of the victim's testimony. Defense counsel did not object on the basis that the trial court erred in hearing the victim's testimony in defense counsel's absence. In addition, defense counsel did not object at the second sentencing hearing held two months later. Furthermore, Jackson's appellate counsel did not raise this issue in Jackson's motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

A defendant is entitled to the assistance of counsel throughout sentencing proceedings. Sandoval v. State, 884 So.2d 214, 215 (Fla. 2d DCA 2004); Smith v. State, 590 So.2d 1078, 1078 (Fla. 2d DCA 1991). However, rule 9.140(e) provides that "[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to [rule] 3.800(b)." In Brannon v. State, 850 So.2d 452, 456 (Fla. 2003), the court held that "the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [an appellant] from raising the error on direct appeal."

In Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003), the appellant challenged his lack of representation at his resentencing. The First District acknowledged that the issue was unpreserved but held that it constituted fundamental error. The court recognized that unpreserved sentencing errors are not to be entertained on appeal after the adoption of rule 3.800(b)(2).¹ The court nevertheless held that "[t]he lack of representation is not a sentencing error, but rather a due process error." 838 So.2d at 1243.

This court, however, has classified a claim of constitutional error affecting a sentencing proceeding as a claim of sentencing error which must be preserved in

952 So.2d 615

order to be raised on appeal. In Harley v. State, 924 So.2d 831, 832 (Fla. 2d DCA 2005), this court held that a claim of vindictive sentencing—a due process claim—that was not raised at sentencing or in a rule 3.800(b) motion could not be considered on appeal. The Fifth District reached the same conclusion regarding a vindictive sentencing claim in Allende v. State, 882 So.2d 472 (Fla. 5th DCA 2004). See also Summerlin v. State, 901 So.2d 997 (Fla. 2d DCA 2005) (holding that a...