Lamberson v. State
Decision Date | 12 February 2021 |
Docket Number | Case No. 2D20-293 |
Citation | 312 So.3d 1007 (Mem) |
Parties | Anthony Jesse LAMBERSON, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Anthony Jesse Lamberson, pro se.
Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
Affirmed.
Anthony Jesse Lamberson appeals the order denying his postconviction motion. See Fla. R. Crim. P. 3.800(a). I concur in the court's decision to affirm.
Based on the issue framed by Mr. Lamberson before the postconviction court, I conclude that the postconviction court properly denied relief. However, my review of our limited record leaves me unsettled. Mr. Lamberson may, indeed, be serving an illegal sentence, despite his unsuccessful attempt to convince the postconviction court or this court otherwise.
Some background is necessary. Mr. Lamberson, in exchange for a sentence of 120 days in jail and a one-week furlough before sentencing, pleaded guilty to three counts of obtaining property in return for a worthless check (more than $150) and one count of uttering a worthless check (less than $150). Mr. Lamberson did not appear for sentencing and was later arrested. After an evidentiary hearing, the trial court found that Mr. Lamberson had failed to appear for sentencing and had committed new crimes. The trial court sentenced Mr. Lamberson to concurrent terms of five years' imprisonment for the third-degree felony convictions and to time served for the misdemeanor. We affirmed on direct appeal. Lamberson v. State, 256 So. 3d 174 (Fla. 2d DCA 2018) (table decision).
Relying on Brown v. State, 260 So. 3d 147 (Fla. 2018), Mr. Lamberson told the postconviction court that his five-year sentences were illegal because his scoresheet reflected a total of eighteen points, and a jury made no finding that a non-state prison sanction could present a danger to the public.1 Section 775.082(10), Florida Statutes (2016), states as follows:
If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.
The postconviction court denied Mr. Lamberson's motion, reasoning that he waived his right to a jury finding when he pleaded:
[B]y acknowledging the Court's recitation of the maximum potential sentence if he failed to appear, Defendant effectively waived his right to have the facts necessary to enhance his sentence beyond the statutory maximum be found by a jury and stipulated that he could face any sentence up to 15 years.
As I read the plea colloquy between Mr. Lamberson and the trial court, I am not convinced that Mr. Lamberson waived his rights. The colloquy does not address section 775.082(10)'s starting point that a maximum sentence, absent a finding of dangerousness, cannot be prison time. And it is beyond cavil that a criminal defendant cannot agree to an illegal sentence. See Parks v. State, 223 So. 3d 380, 383 (Fla. 2d DCA 2017) ( ); Archer v. State, 309 So.3d 287, 291 (Fla. 5th DCA Dec. 18, 2020) . Moreover, no one—judge or jury—made any findings of dangerousness.2
At this juncture, however, Mr. Lamberson is not entitled to relief. Brown, upon which Mr. Lamberson relies, issued after his judgment and sentences became final. Obviously, the State has an interest in finality. And based on the record before us, I am not prepared to find that Brown applies retroactively. See Reed v. State, 192 So. 3d 641, 644 n.2 (Fla. 2d DCA 2016) (). But cf. Adams v. State, 289 So. 3d 958, 961 (Fla. 5th DCA 2020) ( ). What gnaws at me is that absent a finding of dangerousness, the statutory maximum sentences for Mr. Lamberson's third-degree felony convictions are non-state prison sanctions. See § 775.082(10).
But Mr. Lamberson did not raise the lack of findings before the postconviction court. He raised the issue for the first time in his reply brief to us. Thus, the postconviction court did not have an opportunity to determine whether Mr. Lamberson's sentences are illegal for this reason. And it is fairly straightforward that we are not accustomed to addressing issues for the first time on appeal. See Annen v. State, 752 So. 2d 1279, 1279 (Fla. 2d DCA 2000) ( ).
Perhaps in an appropriate motion, Mr. Lamberson can make a stronger case. See Rodriguez-Aguilar v. State, 198 So. 3d 792, 797 (Fla. 2d DCA 2016) ( . The motion he filed in the postconviction court does not do the trick.
I am mindful that the Fifth District decided in VanDyke v. State, 76 So. 3d 1077 (Fla. 5th DCA 2011), that a prison sentence imposed under section 775.082(10) without a written finding that a non-state prison sanction could present...
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