Jordan v. State

• Citation: 728 So.2d 748
• Decision Date: 16 September 1998
• Docket Number: No. 97-2002,97-2002
• Parties: William Shaun JORDAN, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

728 So.2d 748

William Shaun JORDAN, Appellant, v. The STATE of Florida, Appellee.

No. 97-2002

District Court of Appeal of Florida, Third District.

September 16, 1998.

Opinion Denying Rehearing and Certification March 10, 1999.

Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Wendy Benner-Leon, Assistant Attorney General, Tallahassee, for appellee.

Before COPE, FLETCHER and SORONDO, JJ.

COPE, Judge.

William Shaun Jordan appeals the sentences imposed after his conviction of attempted second-degree murder of Police Officer Macken, and aggravated assault on Officers Gallagher and Guerrier. Of the four claimed sentencing errors, we reject two for lack of preservation, and the other two on the merits.

I.

At approximately 8:00 a.m. on January 26, 1996, defendant was standing with three other men in a residential area in the southern part of Dade County. Several plainclothes police officers were patrolling the area for drug transactions. The officers approached the defendant's group because they noticed that one of the men was holding a marijuana cigarette. Defendant ran away and Officer Macken chased him on foot. A running gun battle ensued, in which Officer Macken was wounded. Defendant also pointed the firearm at officers Gallagher and Guerrier, but did not fire at them.

The jury convicted the defendant of attempted second-degree murder of a law enforcement officer with a firearm as to Officer Macken, and aggravated assault with a firearm as to Officers Gallagher and Guerrier. Insofar as pertinent here, the court through consecutive sentencing imposed a departure sentence of forty years. Defendant has appealed, claiming multiple sentencing errors.

II.

At sentencing, defendant objected to the use of the 2.0 law enforcement multiplier in calculating his guidelines score. The statute creating the law enforcement multiplier provides, in part, "If the primary offense is a violation of § 775.0823(3), (4), (5), (6), (7), or (8), the subtotal sentence points are multiplied by 2.0." § 921.0014, Fla. Stat. (1995). The defendant correctly points out that the information did not charge him with a violation of section 775.0823, Florida Statutes. Defendant argues that since section 775.0823 was not cited in the information, it follows that the law enforcement multiplier must be stricken. See Thornton v. State, 679 So.2d 871, 871 (Fla. 4th DCA 1996)

.¹

The charging document alleged that defendant committed attempted first-degree murder of a law enforcement officer, with a firearm, "in violation of § 782.04(1) and § 784.07 and § 775.0825 and § 777.04, [Florida Statutes]." Of interest here is the citation to section 775.0825, Florida Statutes, which formerly provided a twenty-five-year mandatory minimum penalty for attempted murder of a law enforcement officer.

When the State filed the information in early 1996, section 775.0825 had recently been repealed. See ch. 95-184, § 18, at 1708, Laws of Fla.² The mandatory minimum sentence was eliminated, and a successor provision governing attempted murder of a law enforcement officer was amended into already-existing section 775.0823, Florida Statutes. See ch. 95-184, § 17, at 1707-08, Laws of Fla.

Florida Rule of Criminal Procedure 3.140(d)(1) states, "Error in or omission of the citation [to the statute that the defendant is alleged to have violated] shall not be ground for dismissing the count or for a reversal of a conviction based thereon if the error or omission did not mislead the defendant to the defendant's prejudice." See also id. R. 3.140(o). Here, the text of the information clearly advised the defendant that he was charged with attempted murder of a law enforcement officer. The statutory citation was in error, but section 775.0823 is the correct statutory successor provision. The incorrect citation was never challenged by motion by the defendant, and there is no showing that the incorrect citation prejudiced the defendant in the defense of the case. The case proceeded to the jury on proper instructions, and the jury returned an interrogatory verdict finding the defendant guilty of the lesser included offense of attempted second-degree murder of a law enforcement officer, with a firearm.³ The violation of section 775.0823 was sufficiently shown. See B.H. v. State, 645 So.2d 987, 996 (Fla.1994)

; Mosely v. State, 688 So.2d 999, 999-1000 (Fla. 2d DCA 1997); Sanders v. State, 386 So.2d 256, 257 (Fla. 5th DCA 1980); Wood v. State, 354 So.2d 134, 135 (Fla. 1st DCA 1978); Tukes v. State, 346 So.2d 1056, 1056 (Fla. 1st DCA 1977); King v. State, 336 So.2d 1200, 1202 (Fla. 2d DCA 1976).⁴ The fact that there was a nonprejudicial error in the statutory citation, rather than an entire absence of an appropriate charge, distinguishes the present case from Thornton v. State, 679 So.2d 871 (Fla. 4th DCA 1996).

III.

Defendant argues alternatively that under section 775.0823, Florida Statutes, he is required to be sentenced within the guidelines. This argument must be rejected on the merits.

For attempted second-degree murder of a law enforcement officer, the penalty is "a sentence pursuant to sentencing guidelines." § 775.0823(4), Fla. Stat. (1995). Defendant reads "pursuant to the sentencing guidelines" as requiring that he be sentenced within the sentencing guidelines. He argues, in other words, that under this statute, the guidelines maximum is the statutory maximum. Since the guidelines range was nineteen to thirty-two years, he is arguing that his statutory maximum for this offense is thirty-two years.

Defendant's argument was never made in the trial court. However, this court may entertain an unpreserved sentencing error which would constitute fundamental error. See § 924.051, Fla. Stat. (Supp.1996); Pryor v. State, 704 So.2d 217, 217 (Fla. 3d DCA 1998); Thompson v. State, 708 So.2d 289, 289-90 (Fla. 4th DCA 1998); Stone v. State, 688 So.2d 1006, 1007 (Fla. 1st DCA), review denied, 697 So.2d 512 (Fla.1997). A sentence in excess of the statutory maximum is fundamental error. See Hyden v. State, 715 So.2d 960, 963 n.1, 23 Fla. L. Weekly D1342, D1343 n. 1 (Fla. 4th DCA 1998) (en banc)

; Harriel v. State, 710 So.2d 102, 104 (Fla. 4th DCA 1998) (en banc). Since defendant's argument amounts to a claim of fundamental error, we may entertain it.

On the merits, however, defendant is not entitled to relief. Section 775.0823 mandates a sentence "pursuant to the sentencing guidelines," § 775.0823(4), Fla. Stat., not a sentence within the guidelines. The phrase "pursuant to the sentencing guidelines" is a generic reference to all of the provisions of the guidelines—which allow upward departures where statutory or case law criteria are met. See id. § 921.0016. Section 775.0823 does not preclude a departure sentence.

IV.

Defendant argues that the departure sentence must be reversed, and the cause remanded for sentencing within the guidelines, because the trial court failed to timely file its written departure reasons. This point must be rejected because it is not preserved for appellate review.

The trial court orally announced its sentencing reasons on June 4, 1997, and said that a written order would be typed by the judicial assistant "this evening and tomorrow it will become part of the court file." The applicable statute requires a departure order to be "filed within 7 days after the date of sentencing." Id. § 921.0016(1)(c).

Although dated the same day—June 4— the departure order was not filed in the clerk's office, according to the clerk's stamp, until June 26, 1997—twenty-two days later. Since that was beyond seven days, defendant argues that the departure order is invalid and must be reversed. See State v. Colbert, 660 So.2d 701 (Fla.1995)

. However, the defendant never presented this claim to the trial court, and seeks to raise it for the first time on appeal.

As part of the Criminal Appeal Reform Act of 1996 (the "Reform Act"),⁵ the Legislature enacted section 924.051, Florida Statutes, which provides, "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." § 924.051(3), Fla. Stat. (Supp.1996). A "prejudicial error" is "an error in the trial court that harmfully affected the judgment or sentence." Id. § 924.051(1)(a). An error is "preserved" if "an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and ... the issue, legal argument, or objection to the evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor." Id. § 924.051(1)(b).

Even before the Legislature passed the Reform Act, the Florida Supreme Court had "issued an opinion suggesting that scarce resources were being unnecessarily expended in ... appeals relating to sentencing errors." Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 773 (Fla.1996) (citation omitted). The court proposed rule amendments "designed ... to require that sentencing issues first be raised in the trial court." Id.

After the Reform Act was enacted, the Florida Supreme Court amended Florida Rule of Appellate Procedure 9.140 to provide:

(d) Sentencing Errors. 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 Florida Rule of Criminal Procedure 3.800(b).

Id. R. 9.140(d) (effective Jan. 1, 1997). The purpose was to harmonize the rule with the Reform Act. See id. 1996 court commentary.

In order to assure that each defendant would have adequate time to call sentencing errors to the attention of the trial court, the Florida Supreme Court amended Rule...