Rosado v. State

• Decision Date: 06 December 2013
• Docket Number: No. 5D12–4257.,5D12–4257.
• Citation: 129 So.3d 1104
• Parties: Raul ROSADO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

129 So.3d 1104

Raul ROSADO, Appellant,

v.STATE of Florida, Appellee.

No. 5D12–4257.

District Court of Appeal of Florida, Fifth District.

Dec. 6, 2013.

James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

ON MOTION FOR REHEARING

COHEN, J.

We grant Raul Rosado's motion for rehearing, withdraw our prior opinion, and substitute the following in its stead.

Raul Rosado appeals from the judgment and sentence entered after he was adjudicated guilty of kidnapping with intent to inflict bodily harm or terrorize, burglary of a conveyance with an assault, carjacking, aggravated battery causing great bodily harm, aggravated assault with an intent to commit a felony, and two counts of misdemeanor battery following a jury trial. On appeal, he argues that: (1) his convictions for both burglary with an assault and aggravated assault with an intent to commit a felony violate the prohibition against double jeopardy; (2) his convictions for aggravated battery and two counts of misdemeanor battery violate the prohibition against double jeopardy; and (3) the trial court imposed a vindictive sentence in sentencing him to forty years' imprisonment. We affirm in part and reverse in part.

In the early morning hours of July 21, 2008, the victim was parked in a parking lot beneath the I–4 overpass in downtown Orlando when a man she did not recognize approached her car. The man eventually convinced the victim to give him a ride to Orange Blossom Trail. During the car ride, the man pressed something against the victim's side, demanding that she do as he said. The victim did not know what was pressed against her, but she feared that it was a gun. The man ordered the victim to turn onto the next side street and pull over, and she complied. Once the car was stopped, she told the man to get out, but he refused. When the victim attempted to exit the car, the man punched her in the face. She tried to reach for the door handle again, but the man choked her and hit her several times. He ordered her to push the driver's seat back, but she refused. The man then reclined her seat and demanded that she remove her pants and underwear. The man digitally penetrated her and continued to hit and choke her as she struggled. The victim eventually was able to escape from the car, at which point the man jumped into the driver's seat and sped off.

The victim flagged down assistance, law enforcement was called, and she was transported to the hospital. Law enforcement located the victim's car the next day and processed it for evidence, but the case remained cold for over two years.

In 2010, the Orange County Sheriff's Office received a tip identifying Rosado as the victim's attacker. Detectives showed the victim a photographic line-up and she identified Rosado as her attacker. Based upon the victim's identification, the Sheriff's Office obtained a warrant for Rosado's DNA and determined that his DNA matched the DNA found on the victim's body and in her car. Rosado's fingerprints were also found on the car.

The State filed an information charging Rosado with: (1) sexual battery with a deadly weapon or physical force; (2) kidnapping with intent to inflict bodily harm or terrorize; (3) burglary of a conveyance with an assault; (4) carjacking; (5) aggravatedbattery causing great bodily harm; (6) aggravated assault with intent to commit a felony; and (7) felony battery. The jury found Rosado guilty as charged on counts two through seven. As to the sexual battery charge, the jury found Rosado guilty of the lesser-included offense of battery. At the sentencing hearing, the State announced that it would not go forward with attempting to prove Rosado's prior battery conviction for the purposes of establishing felony battery. Accordingly, the trial court adjudicated Rosado guilty of misdemeanor battery on count seven.

On appeal, Rosado argues that some of his convictions violate the prohibition against double jeopardy.¹ As to the convictions for both burglary with an assault and aggravated assault with intent to commit a felony, the State concedes error. Accordingly, we vacate Rosado's conviction for aggravated assault with intent to commit a felony.

Rosado further submits that his convictions for aggravated battery causing great bodily harm and two counts of misdemeanor battery also violate the prohibition against double jeopardy. We agree. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002) (holding that dual convictions for battery and aggravated battery causing great bodily harm violated double jeopardy principles where defendant committed battery and aggravated battery against same victim, in same location, and defendant's actions “were within the course of one continuous episode attacking [the victim]”); see also Arnold v. State, 514 So.2d 419, 421 (Fla. 2d DCA 1987) (“The battery is a necessarily included lesser offense of the aggravated battery, and the constitutional protection against double jeopardy prohibits separate convictions and sentences.”). We therefore vacate Rosado's two misdemeanor battery convictions.

Rosado also claims that the trial court imposed a vindictive sentence by sentencing him to forty years' imprisonment even though the State had initially offered him a twenty-five-year plea. However, Rosado did not raise this error below, either by contemporaneous objection at the sentencing hearing or by a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b). Thus, we first must determine whether this issue is cognizable on appeal.

Rule 3.800(b) allows the filing of a “motion to correct any sentencing error, including an illegal sentence” before filing an appeal, or, when an appeal is pending, before the first brief is filed. Florida Rule of Appellate Procedure 9.140(e), in turn, provides that “[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).” In Brannon v. State, 850 So.2d 452, 456 (Fla.2003), the supreme court held that “for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.”

In Allende v. State, 882 So.2d 472, 473 (Fla. 5th DCA 2004), this Court held that to preserve a claim of vindictive sentencing, the defendant must either lodge a contemporaneous objection during the sentencing hearing or assert the argument in a motion filed pursuant to rule 3.800(b). In reaching this conclusion, we reasoned that a claim of vindictive sentencing is a “sentencing error” within the meaning of rule 3.800(b). Id.

After our decision in Allende, the Florida Supreme Court clarified the issue of which types of errors constitute “sentencing errors” subject to rule 3.800(b). See Jackson v. State, 983 So.2d 562 (Fla.2008). The supreme court made clear that not all errors that occur in the sentencing context constitute a “sentencing error” under rule 3.800(b). “Instead, errors we have recognized as ‘sentencing errors' are those apparent in orders entered as a result of the sentencing process.” Id. at 572. The court set forth a non-exhaustive list of “sentencing errors” subject to the rule: claims that the defendant was improperly habitualized; that the sentence exceeded the statutory maximum; that the scoresheet was inaccurate; that the trial court improperly imposed a departure sentence; that the written order deviated from the oral pronouncement; that the trial court improperly assessed costs; that the trial court improperly sentenced the defendant to simultaneous incarceration and probation; that the trial court failed to award credit for time served; that the trial court failed to address in writing its decision to impose adult sanctions; and that a sentencing statute was unconstitutional. ²Id. at 572–73. The court explained that, generally, these types of errors are not apparent until the sentencing order itself is entered; thus, the defendant would not have had the opportunity to object to the error before the sentencing order was entered. Id. at 573. Conversely, the court held that the temporary absence of defense counsel during a victim impact statement was not the type of “sentencing error” that could be asserted under rule 3.800(b); rather, it was “an error in the sentencing process,” which was not subject to the rule and thus could be asserted for the first time on appeal if it amounted to fundamental error. Id. at 574.

Applying Jackson to the instant case, we conclude that a claim of vindictive sentencing is “an error that occurs during the sentencing process, not an error in the sentencing order,” Jackson, 983 So.2d at...