Pressley v. State

• Decision Date: 31 October 2011
• Docket Number: No. 1D10–4615.,1D10–4615.
• Citation: 73 So.3d 834
• Parties: Cortney Cornarus PRESSLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

73 So.3d 834

Cortney Cornarus PRESSLEY, Appellant,

v.STATE of Florida, Appellee.

No. 1D10–4615.

District Court of Appeal of Florida, First District.

Oct. 31, 2011.

Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Appellant, Cortney Cornarus Pressley, seeks review of his sentence for carrying a concealed firearm without a license (“count I”) and resisting an officer without violence (“count II”). Appellant argues that the trial court violated his right to due process when it refused to consider imposing a youthful offender sentence. The State properly concedes error. We agree that the trial court's arbitrary policy not to consider “boot camp,” which is a type of youthful offender sentence, without any reflection on the merits of Appellant's case constitutes a denial of due process and, thus, fundamental error. Therefore, we reverse and remand for resentencing.

The jury returned verdicts of guilty as to both counts and the trial court sentenced Appellant to four years' imprisonment for count I and one year imprisonment for count II to run concurrently with count I. At the end of the sentencing hearing, Appellant inquired, “There's no boot camp?” The trial court replied, “Sir, I don't do boot camp.” The trial court provided no other comments. In this appeal, Appellant seeks reversal of his sentence and remand for resentencing with consideration, in the trial court's discretion, of the youthful offender sentence. Our review is de novo. See Cromartie v. State, 70 So.3d 559, 563 (2011) (stating that a violation of due process is a pure question of law).

For an error related to a sentence to be considered on appeal it must fall into one of three categories: a “sentencing error” preserved through a contemporaneous objection or timely motion under Florida Rule of Criminal Procedure 3.800(b); an error that occurred during sentencing process that is preserved by contemporaneous objection; or a fundamental error that occurred during the sentencing process. See Jackson v. State, 983 So.2d 562, 569, 572–74 (Fla.2008). A sentencing error is a term of art and is not simply an error that might conceivably occur during a sentencing hearing; it is an error in an order “entered as a result of the sentencing process.” Jackson, 983 So.2d at 572. The error at issue is not a “sentencing error” because the refusal to consider a lawful sentence is not an error in an order “entered as a result of the sentencing process.” See id. The error at issue here is simply one that occurred during the sentencing process. To preserve such an error for review, Appellant needed to raise an objection specific enough to apprise the trial court of its error. Jackson, 983 So.2d at 568, 573–74. Although Appellant's question (“There's no boot camp?”) was not sufficient to satisfy the specificity requirement of the preservation rule, the trial court's response to the question did reveal the presence of a fundamental error. See Cromartie, 70 So.3d at 563 (holding that a trial judge's arbitrary sentencing policy was fundamental error).

“[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.” Jackson, 983 So.2d at 575 (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994)). “[I]n order to be considered fundamental, an error must be serious. In determining the seriousness of an error, the inquiry must focus on the nature of the error, its qualitative effect on the sentencing process and its quantitative effect on the sentence.” Maddox v. State, 760 So.2d 89, 99 (Fla.2000). As the Florida Supreme Court recently noted in Cromartie v. State, fundamental error occurs when a trial court refuses to consider a legislatively authorized sentencing option as a matter of policy. See 70 So.3d at 564 (holding the trial court's stated policy of rounding up the sentence was a fundamental error because it improperly extended incarceration in an arbitrary manner).

Section 958.021, Florida Statutes (2009), part of the Youthful Offender Act, provides that “[i]t is the ... intent of the Legislature to provide an additional sentencing alternative to be used at the discretion of the court when dealing with offenders who have demonstrated that they can no longer be handled safely as juveniles and who require more substantial limitations upon their liberty to ensure the protection of society.” The Youthful Offender Act provides that “[i]n counties where there are county-operated youthful offender boot camp programs ... the court may sentence a youthful offender to such a boot camp.” § 958.046, Fla. Stat. (2009); see also Holmes v. State, 899 So.2d 432, 434 (Fla. 3d DCA 2005).

Application of the Youthful Offender Act to any particular defendant is within the discretion of the trial judge because the trial judge “is in the best position to determine whether sentencing under the act is the most desirable treatment for that defendant.” Ellis v. State, 475 So.2d 1021, 1023 (Fla. 2d DCA 1985). However, “[t]he trial court's sentencing discretion under the Youthful Offender Act is not unbridled.” McKinney v. State, 27 So.3d 160, 161 (Fla. 1st DCA 2010). The trial court may, after reviewing the criteria, decline to sentence a statutorily qualified person as a youthful offender. Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998). But, “[l]ike any other exercise of judicial discretion, the trial court's sentencing decision must be supported by logic and reason and must not be based upon the whim or caprice of the judge.” McKinney, 27 So.3d at 161. Moreover, judicial application of a policy against consideration of a lawful sentence is a violation of a defendant's due process. See Cromartie, 70 So.3d at 563. This Court has already stated that the trial court's personal...