RALPH WALDO EMERSON, IV

v.

STATE OF FLORIDA

WINOKUR, J.

Ralph Waldo Emerson IV, appeals his sentence for multiple charges, including attempted first-degree murder, after pleading nolo contendere. Emerson argues that the trial court committed fundamental error by failing to conduct a competency hearing and by failing to enter a final order determining he was competent before sentencing him. To the extent he is claiming that his sentence was erroneous, he failed to preserve this issue for appellate review, irrespective of his claim that the error was fundamental. Accordingly, we affirm the judgment and sentence.

After Emerson entered his plea but before his sentencing, defense counsel moved for appointment of a psychiatric expert to determine if Emerson was competent to proceed. Counsel explained that he had just discovered cause to question Emerson’s competency.

The trial court granted the motion, a competency evaluation was performed and a report submitted. The psychologist concluded Emerson was competent to proceed.

However, the trial court never conducted a hearing or made a final determination as to Emerson’s competency before sentencing him. Emerson did not object at sentencing to the lack of competency hearing or determination, nor did he file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b), either at trial or on appeal. Emerson argues on appeal that these failures constitute fundamental error. Florida Rule of Appellate Procedure 9.140(b)(2)(A) states that a defendant “may not appeal from a guilty or nolo contendere plea except as follows,” and lists several circumstances where appeal is permitted. (Emphasis supplied.). The first permitted circumstance involves reservation of right to appeal a prior dispositive order of the lower tribunal. Fla. R. App. P. 9.140(b)(2)(A)(i). Emerson did not reserve any issue for appeal. A defendant pleading guilty or no contest may otherwise appeal “only” the following matters: a. the lower tribunal’s lack of subject matter jurisdiction; b. a violation of the plea agreement, if preserved by a motion to withdraw plea; c. an involuntary plea, if preserved by a motion to withdraw plea; d. a sentencing error, if preserved; or e. as otherwise provided by law.

Fla. R. App. P. 9.140(b)(2)(A)(ii). None of these circumstances describe Emerson’s claim on appeal. Because a defendant “may not appeal” from a no contest plea unless it involves “only” one of these grounds, Emerson is not entitled to appellate relief. The supreme court reached a similar conclusion in State v. Dortch, 317 So. 3d 1074 (Fla. 2021). The trial court in Dortch failed to hold a hearing on the petitioner’s competency and failed to make

a competency finding in spite of the petitioner’s motion for competency examination, prior to the petitioner’s no-contest plea. Id. at 1075-76. The petitioner claimed on appeal that the court’s failures constituted fundamental error and that he was entitled to reversal. The supreme court held that no “fundamental-error exception” exists that would permit a defendant who had pleaded no contest to appeal the failure to comply with rules of procedure related to competency, without preserving the issue by filing a motion to withdraw the plea below in accordance with rule 9.140(b)(2)(A)(ii)c. Id. at 1084.

Emerson argues that Dortch does not apply because he is arguing only that the sentence was improperly imposed without a proper competency determination; not that the plea itself was involuntary, which was at issue in Dortch.¹ This is so because even if an unpreserved sentencing error can be characterized as fundamental, an appellate court will not consider such an error on direct appeal unless the appellant has filed a motion in the trial court under Florida Rule of Criminal Procedure 3.800(b).

See Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003) (holding that “the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal”).

This rule applies even when the defendant has been convicted after trial rather than after a guilty or no-contest plea. If an appellate court need not consider a fundamental sentencing error even after trial unless it has been preserved by a motion below, there is no reason why it should be compelled to consider such a claim after a no-contest plea, given the narrow and specific grounds that may be raised on appeal following a no-contest plea.² AFFIRMED. M.K. THOMAS and TANENBAUM, JJ., concur.¹ In his initial brief, Emerson argues that the trial court’s failures constitute fundamental error, asking us to reverse his “convictions and sentence” and to remand for a competency hearing. Emerson did not argue that Dortch did not apply to his case because he was only challenging the sentence until his reply brief. Emerson altered his request of this court in the reply brief: instead of asking us to reverse his “convictions and sentence,” he asked us only to reverse his “sentencing judgment.” This argument was not in response to any claim in the State’s answer brief, as the State confessed error and never cited Dortch either. New arguments asserted in a reply brief that were not raised in the initial brief are waived. Truehill v. State, 358 So. 3d 1167, 1186 n.12 (Fla. 2022).

See also Johnson v. State, 135 So. 3d 1002, 1033 (Fla. 2014).

While we could reject Emerson’s claim on this basis alone, we will address it due to the similarity of the argument to that made in the initial brief.