Rosier v. State

• Decision Date: 28 June 2019
• Docket Number: No. 1D16-2327,1D16-2327
• Parties: ROGER N. ROSIER, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

ROGER N. ROSIER, Appellant, v. STATE OF FLORIDA, Appellee.

No. 1D16-2327

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

June 28, 2019

On appeal from the Circuit Court for Wakulla County.

Dawn Caloca-Johnson, Judge.

ON MOTION FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION

ROWE, J.

Roger N. Rosier's judgment and sentence were reversed by a panel of this Court on grounds that the competency hearing conducted by the trial court was legally inadequate. See Rosier v. State, 43 Fla. L. Weekly D2042 (Fla. 1st DCA Sept. 5, 2018). The State moved for rehearing, rehearing en banc, and clarification, asserting that the Court sua sponte decided an issue not argued by Rosier. We grant the motion, withdraw the panel opinion, and substitute the following in its place.

I.

Rosier appeals his conviction and sentence for resisting an officer with violence. He argues that the trial court erred by: (1) imposing a discretionary fine and surcharge without orally pronouncing them, and (2) failing to conduct a competency hearing.

We agree that the trial court erred when it imposed the discretionary fine and surcharge under section 775.083, Florida Statutes, without orally pronouncing them at sentencing. Thus, the fine and surcharge must be stricken. We affirm Rosier's judgment and sentence in all other respects.

Rosier made only one argument related to competency in his initial brief—that the trial court erred as a matter of law by failing to conduct a competency hearing. Rosier's specific argument was:

Mr. Rosier was committed to the Florida State Hospital after the trial court found that he was incompetent to proceed on October 7, 2013. After receiving a report recommending a finding of competency, the trial court scheduled the hearing required by Florida Rule of Criminal Procedure 3.212(c) for July 9, 2014; however, the required hearing never occurred. Subsequently, on August 14, 2014, a different circuit court judge entered an order finding that Mr. Rosier was competent. The controlling rules and case law cited above provide that a competency hearing is required in this context. The trial court erred as a matter of law by adjudging Mr. Rosier—who had previously been adjudged incompetent—competent without first holding a hearing.

Weeks after the initial brief was filed, the State sought and was granted leave to supplement the record with the transcript of the competency hearing conducted on August 14, 2014. After beingserved with a transcript contradicting his claim that no competency hearing occurred, Rosier did not seek to amend the initial brief to clarify or supplement his arguments on appeal.

The State then filed an answer brief, arguing that the transcript of the competency hearing, the expert's report, and the trial court's order refuted Rosier's argument that the trial court failed to conduct a competency hearing. The State contended that the record showed,

the trial court made an independent determination that Rosier was competent and fully complied with the requirements expressed in Dougherty v. State, 149 So. 3d 672 (Fla. 2014), and Merriell v. State, 169 So. 3d 1287 (Fla. 1st DCA 2015)[,] by holding a hearing, making an independent determination that Appellant was competent to proceed, and entering a written order.

Rosier did not respond to the State's arguments. Rather than file a reply brief, he filed a "Notice that Appellant Will Not File a Reply Brief."

After briefing, this Court delivered an opinion reversing Rosier's judgment and sentence. The panel majority cast Rosier's argument on appeal as one "challeng[ing] the adequacy of the hearing at which it was determined that his competency had been restored." Rosier, 43 Fla. L. Weekly at D2042. Holding that the competency hearing was inadequate, the majority reversed and remanded for the trial court to make a nunc pro tunc evaluation of Rosier's competency.

II.

On rehearing, the State points out that the only argument presented in Rosier's initial brief was that the trial court entered an order finding Rosier competent to proceed without conducting a competency hearing. The State argues that Rosier did not challenge the adequacy of the hearing. Thus, the issue was waived, and the panel majority erred by sua sponte raising and deciding the issue. In his response to the rehearing motion, Rosier acknowledged that he failed to raise the adequacy of the hearingin the initial brief but argued that the issue was properly before the Court because the State raised it in the answer brief, and Rosier's initial-brief argument—that the trial court failed to hold a competency hearing—necessarily included an argument that the hearing was inadequate. We disagree and hold that Rosier waived any argument on the adequacy of the competency hearing when he failed to raise the issue in the initial brief.

An appellate court is "not at liberty to address issues that were not raised by the parties." Anheuser-Busch Co., Inc. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013). Nor may an appellate court "depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention." Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (on motion for rehearing); see also D.H. v. Adept Cmty. Servs., Inc., 43 Fla. L. Weekly S533, S539 (Fla. Nov. 1, 2018) (Canady, C.J., dissenting) ("[I]t is not the role of the appellate court to act as standby counsel for the parties."). Instead, an appellate court must confine its decision to the issues raised in the briefs. See Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) ("Basic principles of due process"—to say nothing of professionalism and a long appellate tradition—"suggest that courts should not consider issues raised for the first time at oral argument" and "ought not consider arguments outside the scope of the briefing process.") (quoting Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013))); Redditt v. State, 84 So. 2d 317, 320 (1955) ("The function of an assignment of error is to point [to] the specific error claimed to have been committed by the court below, in order that the reviewing court and opposing counsel may see on what point the appellant seeks reversal and to limit argument and review to such point."); T.M.H. v. D.M.T., 79 So. 3d 787, 827 (Fla. 5th DCA 2011) (Lawson, J., dissenting) ("Judicial restraint serves as the essential self-imposed 'check' against the judicial branch's abuse of power. . . ."). For an appellant to raise an issue properly on appeal, he must raise it in the initial brief. Otherwise, issuesnot raised in the initial brief are considered waived or abandoned.¹ See Hall v. State, 823 So. 2d 757, 763 (Fla. 2002) (finding procedurally barred argument made in appellant's reply brief that was not raised in the initial brief), abrogated on other grounds by Norvil v. State, 191 So. 3d 406 (Fla. 2016); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959) ("An assigned error will be deemed to have been abandoned when it is completely omitted from the briefs."); J.A.B. Enter. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992) ("[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief."); Philip J. Padovano, Waiver, 2 Fla. Prac., App. Practice § 8:10 (2017 ed.) ("Failure to pursue the argument on appeal or review is a waiver of the point.").

These fundamental principles of appellate review and judicial restraint apply even when the defendant has been convicted of a capital crime and sentenced to death. See Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (declining to address a claim of ineffective assistance of counsel because appellant raised the claim for the first time in the reply brief); Simmons v. State, 934 So. 2d 1100, 1117 n.14 (Fla. 2006) (declining to reach on direct appeal "any arguments not expressly included in Simmons' brief to this Court"); Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (finding waived on direct appeal a claim of improper admission of the defendant's statements made during a taped interview because thedefendant failed to brief fully and argue the issue); Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995) (reiterating on direct appeal that "[t]he law is well settled that failure to raise an available issue constitutes an admission that no error occurred"); Duest v. Dugger, 555 So. 2d 849, 851-52 (Fla. 1990) (finding waived in a postconviction appeal any claims not fully argued in the appellant's initial brief).

Applying these principles here, we find Rosier waived any argument that the competency hearing was inadequate. Williams v. State, 932 So. 2d 1233, 1237 (Fla. 1st DCA 2006) (defining waiver as the "voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right"). In his initial brief, Rosier argued only that the trial court failed to hold a competency hearing. Now on rehearing, he argues, for the first time, that the hearing was inadequate. Because Rosier did not challenge the adequacy of the competency hearing in his initial brief, he may not raise it now on rehearing. Coolen, 696 So. 2d at 742 n.2; Anheuser-Busch, 125 So. 3d at 312.

Rosier offers two reasons why his failure to brief the adequacy of the hearing does not bar this Court from reviewing the issue. First, he asserts that the issue was properly before the Court because the State implicitly raised the issue in the answer brief by arguing that the trial court made an independent determination of Rosier's competency. Second, Rosier argues that "[a] finding of competency following an inadequate hearing is essentially the same error as a finding of competency following no hearing at all."

We reject both arguments. First, the State's arguments in the answer brief assigned no new error...