Sims v. State, No. SC05-400.

CourtUnited States State Supreme Court of Florida
Writing for the CourtLewis
Citation998 So.2d 494
PartiesGene Robert SIMS, Petitioner, v. STATE of Florida, Respondent.
Decision Date25 September 2008
Docket NumberNo. SC05-400.
998 So.2d 494
Gene Robert SIMS, Petitioner,
v.
STATE of Florida, Respondent.
No. SC05-400.
Supreme Court of Florida.
September 25, 2008.
Rehearing Denied December 22, 2008.

[998 So.2d 496]

Christopher M. Jones and Kristen Cooley Lentz, Gainesville, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Wesley Harold Heidt and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, Florida, for Respondent.

LEWIS, J.


We have for review Sims v. State, 869 So.2d 45 (Fla. 5th DCA 2004), which expressly and directly conflicts with the decisions in Geary v. State, 675 So.2d 625 (Fla. 2d DCA 1996), Rodriguez v. State, 684 So.2d 864 (Fla. 2d DCA 1996), and May v. State, 747 So.2d 459 (Fla. 4th DCA 1999). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We quash the decision under review for the reasons set forth in our analysis below.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of the underlying action, which were summarized in the opinion of the Fifth District Court of Appeal, are as follows:

Mr. Sims was driving his wife's truck when he struck and killed Bernell Williams (the "Victim"). For reasons not specified[,] Mr. Sims left the scene of the accident without ever stopping the truck. He was charged with violating section 316.027(1)(b), Florida Statutes (2001), and found guilty as charged in the information.

Sheila Asbury, one of the passengers in the Sims vehicle, testified that the occupants of the truck were looking for drugs, having already smoked crack cocaine and drunk beer prior to the accident. She stated that before Mr. Sims hit the Victim, she saw the Victim laying [sic] on top of a bicycle in the middle of the road. She described the sounds made by the accident as a "loud dragging like metal ... it was dragging bad." Because the Victim was laying [sic] in the middle of the road, Mr. Sims had only two choices. He could either hit the Victim or hit the guardrail on the side of the road. In any event, the trial court eventually determined that the accident was virtually unavoidable.

The medical examiner testified at trial that at the time of his death[,] the Victim had a blood alcohol level of .196, and that he had been struck while he was lying in the street. He theorized that the Victim had fallen off of his bicycle and was lying in the middle of the road when he was struck. The medical examiner further testified that the victim's death was "instantaneous" upon impact, or certainly "within a second or two." The autopsy revealed that the Victim had lacerations of the head, neck, and face; bruises and abrasions on the lower chest; skin rubbed off from large areas of his arms and from his lower back to the top of his shoulders; a torn scalp; crushing injuries to his entire chest and to the right side of his abdomen; a broken right pelvis; every rib fractured on both sides of his torso; a crushed and torn liver; a crushed and torn heart; extensive lung injuries; a broken back and neck; and a crushed skull with extensive injuries to the brain. The doctor concluded that the Victim's injuries were

998 So.2d 497

consistent with his being hit, dragged, and run over.

A law enforcement homicide investigator who responded to the scene indicated that he saw the Victim on the side of the road, where he had been placed by two passers-by. When asked what he was able to determine from an examination of the accident scene, he said[,] "Basically all I could say for sure is that the gentleman had been hit by some type of vehicle and drug down the road for a bit and was dead."

Prior to sentencing[,] a pre-sentence investigation was prepared which reflected a minimum sentence of 8 months['] incarceration. At the sentencing hearing, however, the State argued in favor of adding 120 victim-injury points to Mr. Sims' Criminal Punishment Code scoresheet. The trial judge agreed, and but for a downward departure, the result was the lowest permissible prison sentence of eight years. Because the trial judge found, among other things, that the accident was "nearly unavoidable," he downwardly departed, and sentenced Mr. Sims to five years in the custody of the Department of Corrections, followed by five years of probation.

Sims, 869 So.2d at 46. Sims appealed his conviction to the Fifth District Court of Appeal.

The Fifth District affirmed, concluding that victim-injury points were properly imposed. See id. In reaching this holding, the Fifth District applied an abuse-of-discretion standard to review the trial court's imposition of victim-injury points. See id. at 47. Referencing the decision of the Fourth District in May,1 the Fifth District concluded there was substantial evidence that the victim had been dragged by the vehicle of Sims after the initial impact and, therefore, a sufficient causal connection existed between the offense of leaving the scene of an accident resulting in death and the death of the victim. On this basis, the Fifth District upheld the imposition of victim-injury points. See Sims, 869 So.2d at 48. The district court's conclusion that victim-injury points were properly imposed here conflicts with the specific causation requirement recognized in May. Unlike May, there was no expert in the instant case to establish anything other than the initial impact being the sole and exclusive cause of death. Additionally, the Fifth District reasoned here that the decisions of the Second District in both Rodriguez and Geary2 were distinguishable because no causal connection existed in those cases. See Sims, 869 So.2d at 48. Contrary to the Fifth District's reasoning, the imposition of victim-injury points in this case also conflicts with Rodriguez and Geary because the death of the victim was neither caused by, nor causally related to, Sims leaving the scene of the accident.

Sims sought review of the Fifth District's decision with regard to the imposition of victim-injury points. On March 1, 2005, Sims filed with this Court a pro se

998 So.2d 498

petition to invoke all writs jurisdiction. We properly treated the petition as a notice to invoke discretionary jurisdiction. See Fla. R.App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ...."). This Court dismissed the notice to invoke because it was not timely filed. See Fla. R.App. P. 9.120(b) ("The jurisdiction of the supreme court ... shall be invoked by filing ... notice ... within 30 days of rendition of the order to be reviewed."). Through a motion for reinstatement, Sims contended that his state-appointed attorney did not properly supply him with a copy of the decision below or keep him apprised of the case status, which precluded him from filing a timely pro se petition. Moreover, Sims maintained that he did not immediately request discretionary review because he erroneously believed that he needed the following items to do so: (1) a copy of the mandate resulting from the decision below; (2) the trial-court transcript; and (3) the record on appeal. As requested by this Court, the state-appointed attorney—i.e., appellate counsel during the direct appeal to the Fifth District—provided a response to the motion for reinstatement. On December 19, 2005, we granted Sims' motion for reinstatement. On May 10, 2006, this Court granted review of the Fifth District's decision. See Sims v. State, 926 So.2d 1270 (Fla.2006) (table).

II. ANALYSIS
A. Belated Notices to Invoke

As a preliminary matter, we properly granted the motion for reinstatement. Under the circumstances of the instant case, this Court had the ability to treat the notice to invoke as timely filed. This Court has previously treated belated notices to invoke as timely filed when late filing was due to some fault of the attorney and beyond the incarcerated defendant's control. See, e.g., Rios v. State, No. SC06-1144 (Fla. Nov. 7, 2006); Rodriguez v. State, No. SC05-1442 (Fla. Mar. 2, 2006); Parks v. State, No. SC05-978 (Fla. Feb. 17, 2006); Lyons v. State, No. SC03-249 (Fla. May 4, 2005); Saint-Fleur v. State, No. SC03-44 (Fla. Apr. 15, 2005); Jordan v. State, No. SC02-465 (Fla. Apr.13, 2005); Curtis v. State, No. SC01-2342 (Fla. Apr.12, 2005); Arrington v. State, No. SC02-669 (Fla. Jan. 6, 2004); Lorenz v. State, No. SC02-769 (Fla. Apr. 8, 2003). However, in prior orders granting motions for reinstatement, this Court has not articulated its reasoning. Here, the reasoning is simple.

We clearly had the discretion to treat Sims' notice to invoke as timely filed. Criminal defendants are entitled to a direct appeal as a matter of right in Florida. See Amendments to Fla. R. App. Pro., 685 So.2d 773, 774 (Fla.1996) (concluding that article V, section 4(b)(1) of the Florida Constitution, provides a constitutional protection of the right to appeal); § 924.05, Fla. Stat. (2001) ("Direct appeals provided for in this chapter [which pertains to criminal cases] are a matter of right."). A criminal defendant pursuing a first appeal as a matter of right is guaranteed the right to effective assistance of appellate counsel. See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) ("A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney."). Here, Sims (who was incarcerated at the time) asserted that his state-appointed counsel failed to keep him apprised of the case status and did not properly provide him with a copy of the decision of the Fifth District below. This Court found the arguments persuasive and, therefore, we granted the motion for reinstatement.

998 So.2d 499

The failures of appellate counsel, which prevented Sims from timely filing his pro se notice to invoke discretionary jurisdiction with this Court, occurred when he was represented by a state-appointed attorney during the direct appeal to the Fifth District. Thus, these...

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32 practice notes
  • Butler v. State, Nos. SC10–1133
    • United States
    • United States State Supreme Court of Florida
    • 26 Octubre 2012
    ...health and his behavior or as it related to the crimes”). 10. Butler's claim is distinguishable from that reviewed in Sims v. State, 998 So.2d 494 (Fla.2008). In that case, we held that in accordance with a criminal defendant's right to the assistance of counsel on direct appeal, appellate ......
  • Esty v. Jones, Case No. 3:14cv357/LC/CJK
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 4 Junio 2015
    ...assistance since Florida requires ineffective assistance claims to be raised in initial-review collateral motions. Sims v. State, 998 So. 2d 494 (Fla. 2008).Petitioner contends his trial and appellate counsel's ineffective assistance are a showing of cause to overcome procedural default or ......
  • Woods v. State, CASE NO. 1D15–4042
    • United States
    • Court of Appeal of Florida (US)
    • 24 Abril 2017
    ...So.3d 209, 211 (Fla. 1st DCA 2012). That overstates it, of course, because we do have some discretion in this area. See Sims v. State , 998 So.2d 494, 503 n.8 (Fla. 2008). But this is not a case that warrants departing from our usual approach.The Florida Supreme Court has held that appellat......
  • Peters v. State, No. 4D11–607.
    • United States
    • Florida District Court of Appeals
    • 20 Noviembre 2013
    ...must be raised to allow review of an Apprendi claim,” including challenges to the assessment of “victim injury” points. Sims v. State, 998 So.2d 494, 507 n. 12 (Fla.2008); see, e.g., Matthews v. State, 714 So.2d 469, 469 (Fla. 1st DCA 1998) (defense counsel waived argument as to assessment ......
  • Request a trial to view additional results
32 cases
  • Butler v. State, Nos. SC10–1133
    • United States
    • United States State Supreme Court of Florida
    • 26 Octubre 2012
    ...health and his behavior or as it related to the crimes”). 10. Butler's claim is distinguishable from that reviewed in Sims v. State, 998 So.2d 494 (Fla.2008). In that case, we held that in accordance with a criminal defendant's right to the assistance of counsel on direct appeal, appellate ......
  • Esty v. Jones, Case No. 3:14cv357/LC/CJK
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 4 Junio 2015
    ...assistance since Florida requires ineffective assistance claims to be raised in initial-review collateral motions. Sims v. State, 998 So. 2d 494 (Fla. 2008).Petitioner contends his trial and appellate counsel's ineffective assistance are a showing of cause to overcome procedural default or ......
  • Woods v. State, CASE NO. 1D15–4042
    • United States
    • Court of Appeal of Florida (US)
    • 24 Abril 2017
    ...So.3d 209, 211 (Fla. 1st DCA 2012). That overstates it, of course, because we do have some discretion in this area. See Sims v. State , 998 So.2d 494, 503 n.8 (Fla. 2008). But this is not a case that warrants departing from our usual approach.The Florida Supreme Court has held that appellat......
  • Peters v. State, No. 4D11–607.
    • United States
    • Florida District Court of Appeals
    • 20 Noviembre 2013
    ...must be raised to allow review of an Apprendi claim,” including challenges to the assessment of “victim injury” points. Sims v. State, 998 So.2d 494, 507 n. 12 (Fla.2008); see, e.g., Matthews v. State, 714 So.2d 469, 469 (Fla. 1st DCA 1998) (defense counsel waived argument as to assessment ......
  • Request a trial to view additional results

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