Terry v. State

• Decision Date: 16 January 2019
• Docket Number: No. 4D16-3978,4D16-3978
• Citation: 263 So.3d 799
• Parties: James Edward TERRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

263 So.3d 799

James Edward TERRY, Appellant,

v.STATE of Florida, Appellee.

No. 4D16-3978

District Court of Appeal of Florida, Fourth District.

[January 16, 2019]

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

Conner, J.

Appellant, James Edward Terry, appeals his judgment and sentence for possession of cocaine, asserting the trial court erred in connection with three rulings during his trial and denying his second motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). The second 3.800(b) motion sought a new sentencing proceeding because the prior resentencing hearing was not recorded. We affirm without discussion the trial court's rulings concerning the asserted errors during trial. We also affirm the denial of Appellant's second 3.800(b) motion and explain our analysis. We conclude that Appellant's failure to seek relief pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) precluded rule 3.800(b) relief.

Background

Appellant was charged by amended information with sale or possession of oxycodone with intent to sell within 1000 feet of a school, felon in possession of a firearm, and possession of cocaine. Subsequently, the counts were severed. Appellant proceeded to trial on the felon in possession of a firearm charge first, was found guilty, and was sentenced to five years in prison. Appellant appealed that conviction and sentence, which we affirmed per curiam .

Terry v. State , 226 So.3d 845 (Fla. 4th DCA 2017).

A few months after the first trial, Appellant proceeded to trial on the possession of cocaine charge, which is the subject of this appeal. After the jury returned a verdict of guilty, Appellant was sentenced to four years in prison, consecutive to the sentence for the firearm charge. The original sentencing hearing for the cocaine charge was conducted on November 18, 2016. Thereafter, Appellant gave notice of the instant appeal.

During the pendency of this appeal, Appellant filed a motion to correct his sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), on grounds that the scoresheet improperly included two open cases. The trial court granted Appellant's motion and directed that a separate order would be entered setting a resentencing hearing.

In June 2017, the trial court conducted a status hearing with regards to the rule 3.800(b)(2) motion. At the status hearing, the trial court asked defense counsel what the sentencing error had been and if there had been a trial. After defense counsel explained the scoresheet error, he reminded the trial court that there were two trials for Appellant:

One was the felon in possession of a firearm at his house on the search warrant. The second one was the .1 grams of crack cocaine, Riviera Beach. I don't know if that's ringing any bells with you. We did two trials. This was the sentencing on the second trial.

Defense counsel also informed the trial court that Appellant's appeal from the first case had just been affirmed by this Court. When the trial court asked what Appellant's sentence had been in that case, defense counsel explained that Appellant's sentence in the first case was five years "and the second case was four years consecutive, so –" and the trial court then interjected, "Oh, I must have been mad."

A resentencing hearing was conducted on September 20, 2017, with Appellant present. At resentencing Appellant was again sentenced to four years in prison, consecutive to the five-year sentence for the felon in possession of a firearm charge. Subsequently, Appellant moved to supplement the appellate record with the transcript of the September 20 resentencing hearing. This Court granted the motion. However, it appears that the resentencing hearing could not be transcribed because it was inadvertently not recorded. Therefore, there is no transcript available for the September 20 resentencing.

As a result, on October 31, 2017, Appellant filed a second motion to correct sentencing error under rule 3.800(b)(2), seeking a new resentencing hearing because the trial court failed to ensure that the September 20 resentencing was transcribed. On November 16, 2017, the trial court "on its own motion," entered an order scheduling a hearing for November 21, 2017, to recreate the record ("the sua sponte order"). The sua sponte order instructed the parties to be prepared to articulate as closely as possible their positions and arguments made at the September 20 resentencing, noting that the court would not entertain new argument. Notably, the order made no reference to the pending second rule 3.800(b)(2) motion.

At the November 21, 2017 proceeding to recreate the record, the State stated its recollection of its arguments made at the September 20 hearing and further stated that it was seeking the same sentence. When it was defense counsel's turn to articulate his recollection of the September 20 resentencing, he explained that he apparently did not save his notes from the hearing and did not have an independent recollection of what was said during the proceeding. For that reason, defense counsel asserted it would be more appropriate to have a completely new resentencing hearing on the record. The trial court then advised that although defense counsel did not have a recollection for purposes of reconstruction, the trial court did have a clear recollection of this case. The trial court explained:

The defendant was tried twice with a verdict coming in on [February 23] and then again on November 8th. So I had a full opportunity to see the defendant and to hear the testimony on both of these cases.

In addition, the defense has filed a motion to correct sentencing error. Quite a nice motion. And the State has filed a response to the defendant's motion. So I'm confident that that outlines both parties' position on the matter. And I have a specific recall of it.

I was not even remotely considering sentencing at the bottom of the guidelines, based on the testimony and what I saw during both trials. And whether or not those two new counts were nolle prosequied or not would not have affected this Court's position on what the appropriate sentence is.

Thereafter, the trial court orally stated it was resentencing Appellant to four years imprisonment consecutive to the felon in possession of a firearm charge. Subsequently, Appellant filed an initial brief in this Court asserting errors during the trial and the proceeding conducted on November 21, 2017.

Appellate Analysis

The standard of review for a motion to correct a sentencing error is de novo . Willard v. State , 22 So.3d 864, 864 (Fla. 4th DCA 2009). The standard of review regarding a trial court's exercise of case jurisdiction while an appeal is pending is de novo . See Rogers v. State , 33 So.3d 805, 806 (Fla. 1st DCA 2010) (applying de novo review regarding "whether the trial court had jurisdiction, after appellant filed his notice of appeal, to issue written orders memorializing its prior oral pronouncements").

Regarding his sentence, Appellant claims that reversal is required because the trial court (1) did not have jurisdiction to enter the sua sponte order and conduct the proceeding on November 21; and (2) erred in denying his second 3.800(b) motion because there was no transcript of the resentencing on September 20 and the only appropriate remedy was to grant another sentencing hearing, since defense counsel could not recall what was said at the September resentencing. We construe Appellant's argument regarding jurisdiction to refer to case jurisdiction, meaning whether the trial court had the authority to act. MCR Funding v. CMG Funding Corp. , 771 So.2d 32, 35 (Fla. 4th DCA 2000) (" ‘Case’ jurisdiction is the ‘power of the court over a particular case that is within its subject matter jurisdiction.’ " (quoting T.D. v. K.D. , 747 So.2d 456, 457 n.2 (Fla. 4th DCA 1999) ) ); Trerice v. Trerice , 250 So.3d 695, 698 (Fla. 4th DCA 2018) ("The concept of ‘the power of the court over a particular case’ is rooted in the notion that given the procedural posture of the case , the court is without authority to act.").

An initial issue is the proper characterization of the November 21 proceeding. In the briefs, the parties fluctuate between referring to the November 21 proceeding as a "resentencing" hearing and as a hearing to "reconstruct the record." The lack of clarity understandably flows in part from the fact that the sua sponte order is entitled "Order Resetting Resentencing," yet the body of the order makes no reference to the second rule 3.800(b) motion and clearly states the purpose of the hearing is to reconstruct the record. Adding to the confusion is the fact that the trial court made an oral pronouncement at the conclusion of the November 21 proceeding that it was sentencing Appellant to four years for possession of cocaine, consecutive to the sentence for possession of a firearm by a felon, nunc pro tunc the original sentencing date, yet failed to enter a written sentence after the proceeding. Additionally, the trial court did not enter a written order approving a statement of the evidence and proceeding after the conclusion of the November 21 proceeding.

Appellant argues that since the sua sponte order and the November 21 proceeding made no reference to his second rule 3.800(b) motion, the motion is deemed denied because the trial court did not rule on it within sixty days. See Fla. R. Crim. P. 3.800(b)(1)(B). Appellant argues such denial was error. The State argues the trial court properly denied the second motion by the November 21 proceeding, and there was no error as to the "resentencing" on that date.

Addressing the fluctuations in characterizations, we do not construe the November 21 proceeding as a resentencing hearing because the record is clear...