Thompson v. State, 97-0164

• Decision Date: 14 January 1998
• Docket Number: No. 97-0164,97-0164
• Citation: 708 So.2d 289
• Parties: 23 Fla. L. Weekly D216 Jason Edwaurd THOMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 289

708 So.2d 289

23 Fla. L. Weekly D216

Jason Edwaurd THOMPSON, Appellant, v. STATE of Florida, Appellee.

No. 97-0164.

District Court of Appeal of Florida,

Fourth District.

Jan. 14, 1998.

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant pled guilty to DUI manslaughter and was sentenced to twelve years incarceration to be followed by three years probation. He challenges his sentence on the grounds that the trial court failed to reduce to writing its decision to impose adult sanctions, and that he was sentenced by a judge other than the one who accepted his guilty plea. However, we find that neither error was preserved for appeal as required by recent amendments to the Florida Statutes and the Rules of Appellate Procedure; appellant brought neither alleged error to the attention of the trial court via a timely objection or a motion to correct sentencing errors. See Fla. R.App. P. 9.140(b)(2)(B)(iv), (d). We write to discuss the proper disposition of cases such as this. Specifically, we address whether the failure to preserve a non-fundamental sentencing error for appeal following a guilty plea is a jurisdictional impediment to an appeal that should result in a dismissal of the appeal, or a non-jurisdictional bar to review that should result in an affirmance. For the reasons that follow, we conclude that such cases are properly disposed of by an affirmance.

Guilty pleas and the Criminal Appeal Reform Act of 1996

Prior to the recent amendments to the Florida Statutes and the Rules of Appellate and Criminal Procedure, sentencing errors were exceptions to the "contemporaneous objection rule," and could be appealed despite the defendant's failure to raise them at trial. See State v. Rhoden, 448 So.2d 1013, 1016 (Fla.1984). However, effective July 1, 1996, a defendant may appeal a non-fundamental sentencing error only if he first raised the alleged error in the trial court:

An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

§ 924.051(3), Fla. Stat. (Supp.1996)(emphasis added). A sentencing error is preserved by objecting at the time of sentencing or by filing a 3.800(b) motion within thirty days after the rendition of the sentence. See Fla. R.App. P. 9.140(d); Fla. R.Crim. P. 3.800(b).

The statutory amendments specifically address the appealability of a sentence which follows a plea of guilty or nolo contendere:

If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.

§ 924.051(4), Fla. Stat. (Supp.1996).

Although the plain language of this section would require the defendant to reserve the right to appeal a post-plea sentence, the supreme court has interpreted this provision as permitting appellate review of a sentencing error without a reservation of the right to appeal so long as the issue is properly preserved for appeal. See Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 775 (Fla.1996). Accordingly, the Rules of Appellate Procedure have been amended as follows:

A defendant may not appeal from a guilty or nolo contendere plea except as follows:

(A) A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.

(B) A defendant who pleads guilty or nolo contendere may otherwise directly appeal only

(i) the lower tribunal's lack of subject matter jurisdiction;

(ii) a violation of the plea agreement, if preserved by a motion to withdraw plea;

(iii) an involuntary plea, if preserved by a motion to withdraw plea;

(iv) a sentencing error, if preserved; or

(v) as otherwise provided by law.

Fla. R.App. P. 9.140(b)(2)(emphasis added).

Appellate jurisdiction

Neither the Statutes, the Rules, nor the supreme court analysis definitively answer whether the preservation of a sentencing error is a jurisdictional hurdle to appellate review. However, in Stone v. State, 688 So.2d 1006 (Fla. 1st DCA), rev. denied, 697 So.2d 512 (Fla.1997), the First District squarely addressed the issue and concluded:

We do not perceive chapter 924, as recently amended, as intended to limit appellate subject matter jurisdiction in direct criminal appeals. Rather it seems to us that the recent amendments were intended merely to make clear that, except with regard to "fundamental" error, all claimed error must first be presented to and ruled upon by the trial court. If it is not, the issue will not be deemed preserved for appellate review.

Id. at 1008.

In reaching this conclusion, Stone first points out that "[j]urisdiction over the subject matter refers to a court's power to hear and determine a controversy. Generally, it is tested by the good faith allegations, initially pled, and is not dependant upon the ultimate disposition of the lawsuit." Id. at 1007 (quoting Calhoun v. New Hampshire Ins. Co., 354 So.2d 882, 883 (Fla.1978)). "Jurisdiction of the subject matter does not mean jurisdiction of the particular case but of the class of cases to which a particular controversy belongs." Id. (quoting Lusker v. Guardianship of Lusker, 434 So.2d 951, 953 (Fla. 2d DCA 1983)). Stone then determines that, in contrast to these definitions of jurisdiction, the rule that all non-fundamental errors must be raised in the trial court is merely "a rule, created by the courts to promote fairness and judicial economy." Id. (citing Castor v. State, 365 So.2d 701, 703 (Fla.1978)).

While we ultimately reach the same conclusion as Stone, we do so with some hesitation. It is true that our supreme court, in Castor, explained that the contemporaneous objection rule is meant to further policies of fairness and judicial economy. Accord Yee v. City of Escondido, 503 U.S. 519, 533, 112 S.Ct. 1522, 1531, 118 L.Ed.2d 153 (1992)(explaining that the contemporaneous objection rule in the federal realm is not a jurisdictional prerequisite to an appeal, but a "prudential" requirement). However, Castor was written before the legislature codified the contemporaneous objection rule in Chapter 924--and expanded it in the process to include sentencing errors. The legislative intent behind Chapter 924 may not be coextensive with the policies underlying the traditional contemporaneous objection rule articulated in Castor.

The legislative history of Chapter 924 provides mixed signals with respect to the issue in this case. The "substantive analysis" by the House Committee on Criminal Justice initially provides a tentative indication that the statutory amendments were designed to implicate jurisdiction, as the analysis begins with a brief discussion of appellate subject matter jurisdiction:

Appellate jurisdiction is the power of a court to review and correct material errors of proceedings in a lower court. The appellate jurisdiction of courts in Florida is defined by the Constitution and the Florida Rules of Appellate Procedure.

H.R. Comm. on Criminal Justice, CS/HB 211 (1996) Final Bill Analysis & Economic Impact Statement 2 (hereinafter "Final Staff Analysis" or "Analysis"). However, this is the extent of the Committee's discussion on jurisdiction; the Analysis does not return to the topic of subject matter jurisdiction to confirm whether Chapter 924 was meant to impose jurisdictional requirements.

The Analysis goes on to describe the purposes behind the traditional contemporaneous objection rule and suggests that the statutory amendments are intended to merely codify the traditional rule:

Florida courts have traditionally held that questions not timely raised and ruled upon in the trial court will not be considered on appeal. This policy, often cited as the "contemporaneous objection rule," is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and to correct errors accordingly. The primary purpose of the rule is to ensure that objections are made when the recollections of witnesses are freshest and not years later in a subsequent trial or a post-conviction relief proceeding. "Delay and unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually."

. . . . .

In an effort to enforce the contemporaneous objection rule, the bill expressly prohibits a court from reversing a judgment or sentence on appeal, unless the court determines that a prejudicial error occurred that was properly preserved in the trial court, but allows courts to reverse on the basis of "fundamental errors,"...