Walcott v. State

• Decision Date: 15 November 1984
• Docket Number: No. 83-1083,83-1083
• Citation: 460 So.2d 915
• Parties: Randall Wayne WALCOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 915

460 So.2d 915

Randall Wayne WALCOTT, Appellant, v. STATE of Florida, Appellee.

No. 83-1083.

District Court of Appeal of Florida Fifth District.

Nov. 15, 1984.

Rehearing Denied Dec. 26, 1984.

James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Defendant was convicted of burglary of a structure and appeals that conviction. In addition to questioning the correctness of the trial court's ruling on a motion to suppress his confession, defendant also questions the propriety of the trial court's retention of jurisdiction over the first half of his sentence.

There was substantial competent evidence to sustain the trial court's finding that defendant's confession was freely and voluntarily made, after he had been fully advised of his rights, so we will not disturb that finding. Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981).

The court did err, however, in retaining jurisdiction over defendant's sentence. Section 947.16(3), Florida Statutes (1983) permits the retention of jurisdiction in sentences for certain enumerated offenses, among which is the offense of burglary of a structure or conveyance in which a human being is present (a second degree felony). The charging document did not allege that a human being was present in the structure, and defendant was not convicted of that offense. Instead, defendant was charged with and convicted of burglary of a structure, a third degree felony. Section 810.02(3), Florida Statutes (1983). Consequently, there is no statutory basis for the retention of jurisdiction here, and that portion of the sentence must be set aside.

The State contends, however, that there was no objection in the trial court to the retention of jurisdiction, and that the issue has not been preserved for appeal. The record reveals that there was an objection made when the court announced its intention to reserve jurisdiction. Although not couched in the most artful language, it appears sufficient to advise the trial court of defendant's objection. We are mindful of the admonition that "... magic words are not needed to make a proper objection." Williams v. State, 414 So.2d 509, 512 (Fla.1982).

However, even should the objection be deemed insufficient to fully apprise the trial court of the basis for defendant's objection, we have previously held, contrary to the State's position, that the contemporaneous objection rule does not apply to sentencing errors where, as here, it is contended that there was an erroneous retention of jurisdiction. Brumley v. State, 455 So.2d 1096 (Fla. 5th DCA 1984) [9 FLW 1945], relying on Rhoden v. State, 448 So.2d 1013 (Fla.1984). For the reasons expressed in Brumley, we reject the State's argument on that issue. See also, Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984).

So that the State may secure a definitive ruling on the applicability of the contemporaneous objection rule to sentencing errors such as involved here, and as we did in Brumley, we certify to the Supreme Court of Florida, as a question of great public importance, the following:

WHETHER, BY OPERATION OF THE CONTEMPORANEOUS OBJECTION RULE, A DEFENDANT IS PRECLUDED FROM CHALLENGING, ON DIRECT APPEAL, THE TRIAL COURT'S RETENTION OF JURISDICTION OVER ONE-HALF OF HIS SENTENCE WHEN NO OBJECTION TO SUCH RETENTION IS MADE AT THE TIME OF SENTENCING?

Conviction AFFIRMED; Retention of Jurisdiction VACATED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge, concurring specially.

This case involves the applicability of the contemporaneous objection rule to sentencing errors.

Effective June 16, 1983 (chapter 83-131), section 947.16(3), Florida Statutes, was amended to reduce the time for which a judge may retain jurisdiction to review a proposed parole release from one-half to one-third of the sentence. When the defendant was sentenced on June 28, 1983, the trial judge erred in retaining jurisdiction over the first one-half of the sentence. See Hayes v. State, 452 So.2d 656 (Fla. 2d DCA 1984).

Section 947.16(3), Florida Statutes, applies only to certain enumerated offenses, including burglary of a dwelling and burglary of a structure or conveyance in which a human being is present. The defendant was charged and convicted of burglary of the Sunshine Junior Food Store. Neither in the original accusatorial document nor otherwise was it alleged that the burglared structure contained a human being. At no time was the defendant given notice of such an allegation nor an opportunity to be heard as to it. No evidence of this essential fact was presented and it was not made an issue concerning which the trial judge was required to make an adjudication. Due process requires these steps when a judicial determination of such a fact can determine the length of time a defendant may be lawfully incarcerated.

Citing Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980), review denied, 392 So.2d 1375 (Fla.1980), and Thomas v. State, 394 So.2d 548 (Fla. 5th DCA 1981), quashed in part 419 So.2d 634 (Fla.1982), the state contends that since the defendant did not raise these sentencing errors in the trial court they were not preserved for appeal.

Until recently this court has rather consistently applied the contemporaneous objection rule to sentencing errors. The following is a case summary of the origin and history of the application of the contemporaneous objection rule (COR) ¹ to claimed sentencing errors in this court:

Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), approved 394 So.2d 407 (Fla.1980), applied the contemporaneous objection rule (COR) to a sentencing error (the application of the enhancement statute without sufficient notice and essential findings), citing Engel v. State, 353 So.2d 593 (Fla. 3d DCA 1977). Engel applied the COR to a sentencing error (violation of the single transaction rule), citing Jones v. State, 341 So.2d 846 (Fla. 3d DCA 1977) and Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976). Jones merely cites Noble. Noble cites no authority and only states that the record did not show that the question of the sentencing error was ever raised in the trial court and, further, Noble had been quashed by the supreme court (Noble v. State, 353 So.2d 819 (Fla.1977)) before Engel issued and long before Smith relied on Engel.

Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980), rev. denied, 392 So.2d 1375 (Fla.1980), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084(3), Fla.Stat.), citing Smith and Engel and Clark v. State, 363 So.2d 331 (Fla.1978). Clark does not relate to a sentencing error but to an improper comment on the defendant's exercise of his right to remain silent.

Singleton v. State, 386 So.2d 1314 (Fla. 5th DCA 1980), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084, Fla.Stat.), citing Smith, Engel, and Noble.

Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980), applied the COR to a sentencing error (improperly imposed condition of probation), citing Jones and Smith.

Barlow v. State, 390 So.2d 165 (Fla. 5th DCA 1980), cited Smith and Jones, and held that an objection to an improper condition of probation should first be presented to the trial court.

Dillow v. State, 391 So.2d 752 (Fla. 5th DCA 1980), cited Barlow, 388 So.2d 349 (Fla. 5th DCA 1980), and applied the COR to an issue concerning restitution.

Thomas v. State, 394 So.2d 548 (Fla. 5th DCA 1981), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084(3), Fla.Stat.), citing Jones and Smith.

Hampton v. State, 399 So.2d 441 (Fla. 5th DCA 1981), applied the COR to a sentencing error (imposition of enhanced sentence without prerequisite findings), citing Jones.

Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981), applied the COR to sentencing errors (sentencing without a PSI and without prerequisite findings required by § 39.111(6), Fla.Stat.), citing Jones and Smith.

Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981), cited Jones, Smith and Dunman and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).

Burley v. State, 402 So.2d 73 (Fla. 5th DCA 1981), cited Rubasky and Dunman and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).

Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981), cited Jones and Smith and applied the COR to a sentencing error (retention of jurisdiction over parole release without stating reasons on record as required by § 947.16(3)(a), Fla.Stat.).

Greene v. State, 403 So.2d 1126 (Fla. 5th DCA 1981), cited Rubasky and Dunman and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).

O'Berry v. State, 406 So.2d 1251 (Fla. 5th DCA 1981), cited Rubasky and Dunman, and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).

Harvey v. State, 408 So.2d 579 (Fla. 5th DCA 1981), cited Smith, Jones and Dunman and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).

Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982), cited Smith, Jones, Singleton, and Barlow, and stated that an objection to an improper condition of probation should first be presented to the trial court.

Glenn v. State, 411 So.2d 1367 (Fla. 5th DCA 1982), cited Rubasky and Dunman and applied the COR to sentencing errors (failure to make findings required by § 39.111(6), Fla.Stat., and the retention of jurisdiction without stating reasons as required by § 947.16(3), Fla.Stat.).

Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 19...