Jackson v. State

• Decision Date: 29 May 2008
• Docket Number: No. SC07-659.,SC07-659.
• Parties: Bertha JACKSON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

983 So.2d 562

Bertha JACKSON, Petitioner, v. STATE of Florida, Respondent.

No. SC07-659.

Supreme Court of Florida.

May 29, 2008.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Krauss, Assistant Attorney General, Bureau Chief, and Ha Thu Dao, Assistant Attorney General, Tampa, Florida, for Respondent.

CANTERO, J.

In this case, we decide whether a trial court's consideration, for sentencing purposes, of victim impact testimony without defense counsel present is a sentencing error as contemplated by rule 3.800(b), Florida Rules of Criminal Procedure. If it is, then for the error to be considered on appeal the defendant must either object at the time or file a post-sentence motion under rule 3.800(b). If it is not a sentencing error, then an unpreserved claim may be considered on appeal even if a motion under rule 3.800(b) is not filed, but only under the stringent fundamental error standard. In deciding this issue, we must resolve a conflict in the district courts of appeal about which errors constitute "sentencing errors" for purposes of rule 3.800(b) and Florida Rule of Appellate Procedure 9.140(e). The First District Court of Appeal has held that the denial of counsel at resentencing is "not a sentencing error, but rather a due process error" that may be raised for the first time on appeal and reviewed for fundamental error. See Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003). In the opinion we review, the Second District Court of Appeal disagreed, concluding that a claim that the "lack of representation at sentencing violates due process is a claim of sentencing error and therefore should have been preserved for appeal as required by rule 9.140(e)." Jackson v. State, 952 So.2d 613, 615 (Fla. 2d DCA 2007). The Second District certified conflict with Gonzalez. Id. at 615. We have jurisdiction, art. V, § 3(b)(4), Fla. Const., and accepted review to resolve the conflict. Jackson v. State, 959 So.2d 716 (Fla.2007) (accepting review).

For the reasons explained below, we hold that the denial of counsel at sentencing is not a "sentencing error" under rule 3.800(b). The rule was intended to permit preservation of errors in orders entered as a result of the sentencing process — in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself. It was not intended to abrogate the requirement for contemporaneous objections. Denial of counsel at sentencing, while occurring during the sentencing process, is not an error in an "order[ ] entered as a result of the sentencing process." Fla. R.Crim. P. 3.800 court cmt. Therefore, to assert such a claim on appeal, no motion under rule 3.800(b) need be filed. Such errors, however, remain subject to the contemporaneous objection rule; if not preserved at trial, they may be reviewed on appeal only for fundamental error. While a denial of counsel for an entire sentencing proceeding would constitute fundamental error, the temporary absence of counsel, at least under the facts of this case, does not. We therefore approve Gonzalez, 838 So.2d 1242, and approve the result, but not the reasoning, in Jackson, 952 So.2d 613.

I. FACTS AND PROCEDURAL HISTORY

A jury found the Petitioner guilty of aggravated battery with a weapon. After the verdict, the trial judge ordered a presentence investigation and set sentencing four weeks later. Before the court adjourned, the State requested that the victim, who had flown in from North Carolina for the trial, be allowed to speak on the issue of sentencing.¹ The trial court responded: "Have her produced. I'm not going to make her come back from North Carolina for sentencing. Everybody stay put until we get the girl back up here." Defense counsel left the courtroom.

After a brief recess, the hearing reconvened. Present were the prosecutor, the defendant, and the victim. Defense counsel did not return. The court ordered a lunch recess, after which the same parties returned. The trial judge expressed reluctance to hear the victim's testimony without defense counsel present, but after noting that the victim had the right to speak about the impact of the crime, that he had advised the parties not to leave the courthouse, and that he could not reach defense counsel by phone, the court allowed the victim to address the court.

During the victim's testimony (which in the transcript is fewer than seven pages long), defense counsel called in and was placed on speakerphone in the courtroom. The following conversation occurred:

THE COURT: Did you not understand that I was going to take the victim's statement so that she wouldn't have to come back from North Carolina?

MR. ANDERSON [defense counsel]: No, I'm sorry. I certainly didn't.

THE COURT: I thought I made it clear. I've taken part of her statement. You can listen to the rest. I will go further and tell you what I have gotten so far.

MR. ANDERSON: Okay.

After summarizing her statement, the trial judge informed the victim that the minimum sentence would be about three years in prison, with a maximum of thirty years. The victim did not think three years was enough, but thought thirty years was too much.

Subsequently, the trial judge held a sentencing hearing. Defense counsel was present. In arguing for a sentence toward the low end of the guidelines, defense counsel noted, among other things: "After all, my understanding is that the victim was opposed to a draconian sentence...." The court adjudged Jackson guilty of aggravated battery and sentenced her to five years in prison.

After filing a notice of appeal, the defense filed a motion to correct sentencing error, arguing that the written judgment and sentencing scoresheet erroneously showed a conviction of aggravated battery with a firearm instead of aggravated battery with a weapon, and also that the judgment showed a conviction for a first-degree felony even though the trial judge orally announced that the crime was a second-degree felony, and sentenced Jackson accordingly. The motion did not raise the absence of counsel during the victim impact testimony. The trial court granted the motion.

On appeal, Jackson argued "that the trial court erred in hearing testimony from the victim for purposes of sentencing without defense counsel present in the courtroom." Jackson, 952 So.2d at 614. The Second District affirmed, concluding that the "sentencing error" was not preserved, and certified conflict with the First District's decision in Gonzalez, 838 So.2d 1242, that the lack of representation during resentencing is "not a sentencing error, but rather a due process error" that may be raised on direct appeal.

We now resolve the conflict.

II. ANALYSIS

As stated earlier, the issue in this case is whether a trial court's consideration for sentencing purposes of victim impact testimony without defense counsel present is a sentencing error as contemplated by rule 3.800(b). If it is, then when a defendant did not object to the error, for the appellate court to consider the issue, the defendant must file a post-sentence motion under rule 3.800(b). If it is not a sentencing error, then when a defendant did not object at the time, no motion under rule 3.800(b) is necessary to preserve the issue for appeal; however, the appellate court must apply the stringent fundamental error standard.

We have stated often, and again just recently, that most trial court errors are subject to the contemporaneous objection rule. "To preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur during trial at the time of the alleged error." Gore v. State, 964 So.2d 1257, 1265 (Fla. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1250, 170 L.Ed.2d 89 (2008). We recently explained the reasons for the rule:

This requirement is "based on practical necessity and basic fairness in the operation of a judicial system." Castor v. State, 365 So.2d 701, 703 (Fla.1978). The rule "not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client's tactical advantage." F.B. v. State, 852 So.2d 226, 229 (Fla.2003).

Insko v. State, 969 So.2d 992, 1001 (Fla. 2007). These reasons are as relevant in the context of sentencing as in any other.

Errors that have not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental. See, e.g., Goodwin v. State, 751 So.2d 537, 544 (Fla.1999) ("If the error is not properly preserved or is unpreserved, the conviction can be reversed only if the error is `fundamental.'"). Fundamental error is "error which goes to the foundation of the case or goes to the merits of the cause of action." Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)). In this case, the Petitioner did not preserve by contemporaneous objection her claim of a deprivation of counsel during part of the victim impact statement.² Ordinarily, therefore, an appellate court could review the claim, but only for fundamental error.

The State argues, however, and the Second District held, that the trial court's error was a "sentencing error," which is subject to slightly different rules. As we recently explained, a defendant has several different options available to raise sentencing errors:

First, when preserved for review, the error may be raised on direct appeal. Second, even if not originally preserved, "to provide defendants with a mechanism to correct sentencing errors in the trial court at the earliest opportunity" and to "give defendants a means to preserve these errors for appellate review," we amended Florida Rule of Criminal Procedure 3.800(b) to allow ...