Mizell v. State, 97-3638
| Decision Date | 26 August 1998 |
| Docket Number | No. 97-3638,97-3638 |
| Citation | 716 So.2d 829 |
| Parties | 23 Fla. L. Weekly D1978 Ricky MIZELL, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Kenneth P. Speiller, Special Assistant Public Defender, Miami, for appellant.
Robert A. Butterworth, Attorney General, and Lara J. Edelstein, Assistant Attorney General, Ft. Lauderdale, for appellee.
Before SCHWARTZ, C.J., FLETCHER, J., and ORFINGER, MELVIN, Senior Judge.
Mizell appeals from his convictions and fourteen year concurrent sentences on seven counts of offenses arising from a fatal accident caused by his driving under the influence. While the single claim of trial error has no merit, so that the convictions are affirmed, and the other concurrent sentences are correct, an obvious mistake was made as to count IV, in which the jury found Mizell guilty only of the lesser included offense of DUI causing non-serious injury, which is a misdemeanor punishable by no more than one year. §§ 316.193(3)(c)(1), 775.082(4)(a), Fla. Stat. (1997).
The state concedes the error but claims that Florida Rule of Appellate Procedure 9.140(d) 1 precludes our consideration of the point because it was not raised below. On rebuttal, the defendant cites Orosco v. State, 710 So.2d 1386 (Fla. 4th DCA 1998) for the proposition that an error of this kind is a fundamental one to which, by the terms of the underlying statute, § 924.051, Fla. Stat. (Supp.1996), the rule does not apply. Accord Harriel v. State, 710 So.2d 102 (Fla. 4th DCA 1998)(en banc); Mason v. State, 710 So.2d 82 (Fla. 1st DCA 1998). The state ripostes with Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998)(en banc), review granted, 718 So.2d 169 (Fla.1998)(table), which says that it does. See also Denson v. State, 711 So.2d 1225 (Fla. 2d DCA 1998); Perry v. State, 714 So.2d 563 (Fla. 1st DCA 1998). Because we are able to reach what we think is the correct result without doing so, we respectfully decline, at least in this case, to involve ourselves in this fratricidal warfare. But see, Pryor v. State, 704 So.2d 217, 217 (Fla. 3d DCA 1998)("appeal ... barred, as it was not properly preserved for review and does not show fundamental error").
It is apparent that, even if arguendo Maddox is correct that defense counsel's failure to present the point precludes reversal, that very holding requires the concomitant conclusion that Mizell received ineffective assistance of his counsel in failing to preserve a right which would have otherwise inevitably resulted in a correction of his sentence. Applying the limited, but controlling, exception to the rule that ineffectiveness claims may not be reached on direct appeal which applies when, as here, "the facts giving rise to such a claim are apparent on the face of the record," Gordon v. State, 469 So.2d 795, 797 (Fla. 4th DCA 1985), review denied, 480 So.2d 1296 (Fla.1985); Stewart v. State, 420 So.2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Whitaker v. State, 433 So.2d 1352 (Fla. 3d DCA 1983), we simply order the amendment of the sentence after remand. 2
While this resolution of the case may not satisfy some of the more rabid of the judicial Thomists among us, we think it is easily more consistent with our duty to avoid the legal churning, see State v. Rucker, 613 So.2d 460 (Fla.1993), which would be required if we made the parties and the lower court do the long way what we ourselves should do the short. Thus, we agree with Maddox, 708 So.2d at 621, that the lack of preservation in the sentencing area necessarily involves ineffective assistance of counsel, but strongly disagree that anything is...
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Jordan v. State
...So.2d 1113, 1115 (Fla. 3d DCA 1998).13 Defendant also argues that the opinion in the present case is in conflict with Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998). We disagree. In Mizell, the defendant had been sentenced to a fourteen-year term on count IV, a misdemeanor which carried ......
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Hodges v. State
...a conviction based on ineffectiveness where counsel failed to object to numerous improper comments of prosecutor); Mizell v. State, 716 So. 2d 829, 829-30 (Fla. 3d DCA 1998) (holding counsel was ineffective for failing to object to an obviously excessive sentence). In my view, defense couns......
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Bain v. State, 97-02007
...apologize to Chief Judge Schwartz, who must surely believe that I have run away and joined a Thomist monastery. See Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998). Jurisdiction is simply not a power to be taken ...
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Dante v. State, 3D03-3239.
...assistance of trial counsel is apparent on the face of the record, this issue may be reached on direct appeal. In Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998), the state conceded that the trial court committed a sentencing error but argued that the issue was not preserved for appellate......
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Unpreserved issues in criminal appeals.
...sentence, Williams v. State, 731 So. 2d 99 (Fla. 3d D.C.A. 1999), quashed on other grounds, 759 So. 2d 680 (Fla. 2000); Mizell v. State, 716 So. 2d 829 (Fla. 3d D.C.A. 1998); erroneously stipulating to the jury that the defendant qualified as a violent career criminal, Rios v. State, 730 So......