White v. State

• Decision Date: 08 May 2019
• Docket Number: No. 4D17-3500,4D17-3500
• Parties: Nickolas WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

271 So.3d 1023

Nickolas WHITE, Appellant,
v.
STATE of Florida, Appellee.

No. 4D17-3500

District Court of Appeal of Florida, Fourth District.

[May 8, 2019]

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

Taylor, J.

Appellant, Nickolas White, was convicted of first-degree murder for a homicide he committed as a juvenile. In 2017, appellant was resentenced to life in prison with sentencing review after 25 years. Appellant now appeals that sentence, raising six issues. We reverse as to appellant's first issue and hold that the trial court erred in failing to order a presentence investigation ("PSI") before resentencing him to life in prison. We affirm as to all other issues raised, but write to address appellant's argument that section 921.1401, Florida Statutes, violates the Sixth Amendment.

PSI Issue

We first address appellant's argument that the trial court erred in resentencing him without first obtaining a PSI.

The legality of a criminal sentence is reviewed de novo. State v. Valera , 75 So.3d 330, 331–32 (Fla. 4th DCA 2011).

271 So.3d 1026

Florida Rule of Criminal Procedure 3.710 governs presentence investigations. The version of rule 3.710(a) in effect at the time of appellant's resentencing states in relevant part:

No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.

Fla. R. Crim. P. 3.710(a) (2017).¹

Under this version of rule 3.710(a), a PSI is required for a first-time felony offender or juvenile offender where the trial court has sentencing discretion and where probation is not ordered. Hernandez v. State , 137 So.3d 542, 543–45 (Fla. 4th DCA 2014). "The trial court's failure to consider a mandatory presentence investigation report before sentencing a defendant is a sentencing error that can be preserved via the filing of a rule 3.800(b) motion." Albarracin v. State , 112 So.3d 574, 574 n.1 (Fla. 4th DCA 2013).

In this case, the trial court had the discretion to sentence appellant anywhere between 40 years in prison and life in prison. See § 775.082(1)(b) 1, Fla. Stat. (2017) (prescribing the sentencing range for a juvenile who is convicted of a capital felony and who actually killed, intended to kill, or attempted to kill the victim).² Thus, because appellant was a juvenile at the time of the offense and the trial court had sentencing discretion, the trial court's failure to order a PSI before resentencing appellant to life in prison was error. Moreover, we conclude that this error was preserved in appellant's rule 3.800(b)(2) motion, and that the defense never expressly waived the right to a PSI.

The State acknowledges Hernandez and Albarracin , but argues that a trial court's failure to order a PSI should be treated as an error in the sentencing process that is not cognizable in a rule 3.800(b) motion. We reject the State's argument.

Rule 3.800(b) "may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process—that is, orders related to the sanctions imposed." Jackson v. State , 983 So.2d 562, 574 (Fla. 2008). In other words, "rule 3.800(b) is intended to permit defendants to bring to the trial court's attention errors in sentence-related orders , not any error in the sentencing process." Id. at 572. "Sentencing errors" under rule 3.800(b) are errors "related to the ultimate sanctions imposed, whether involving incarceration, conditions of probation, or costs." Id. at 573.

Here, the trial court's failure to order a PSI created an error in the "order entered as a result of the sentencing process." Id. at 574. The trial court's imposition of a life sentence in this case without first ordering a PSI was an error that was apparent on the face of the sentencing order and was related to the ultimate sanction imposed. Stated another way, this issue involves an error in the sentencing order because, contrary

271 So.3d 1027

to the version of rule 3.710(a) in effect at the time of resentencing, the trial court imposed a sanction greater than probation on a juvenile offender without first ordering a PSI. Therefore, as this court has...