ARLECIA MICHELLE MIDDLETON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arlecia Middleton appeals habitual offender sentences imposed on two possession of cocaine convictions, conceding the sentences were legally erroneous but arguing they were imposed after the effective date of new procedural requirements. The court affirms, holding that Middleton forfeited her right to appeal the sentencing error by failing to raise it at sentencing or file a timely Rule 3.800(b) motion.
Middleton's appeal is precluded because she failed to raise the sentencing issue at sentencing or in a timely 3.800(b) motion before the trial court. Under the amended statutory scheme effective July 1, 1996, a defendant who pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue cannot appeal the sentence, and must use the Rule 3.800(b) motion procedure within ten days to preserve sentencing errors.
[1] A defendant who pleads no contest without expressly reserving the right to appeal a legally dispositive issue may not appeal the judgment or sentence.
[2] A defendant cannot expressly reserve a sentencing error that has not yet occurred at the time of a plea.
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Join FLexlaw to unlock all legal intelligence“Section 775.084(l)(a)3 excludes from habitual offender sentencing the crime of possession of cocaine.”
Establishes that the sentencing error was conceded—possession convictions cannot be habitualized under Florida law.
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Join FLexlaw to unlock all legal intelligenceMiddleton pled no contest to two counts of sale of cocaine and two counts of possession of cocaine, accepting a maximum six-year sentence in exchange.…
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ALLEN, Judge.
In this direct criminal appeal, the appellant challenges habitual offender sentences imposed for possession of cocaine. Because the appellant failed to raise this issue either at sentencing or in a timely motion under Florida Rule of Criminal Procedure 3.800(b), we affirm.
The appellant pled no contest to two counts of sale of cocaine and two counts of possession of cocaine in exchange for a maximum sentence of six years. The trial court sentenced the appellant as a habitual offender on all counts to concurrent 48 month terms followed by one year of probation. The appellant challenges only the habitual offender sentences for her two convictions for possession of cocaine.
Section 775.084(l)(a)3 excludes from habitual offender sentencing the crime of possession of cocaine. See, e.g., Hayes v. State, 677 So. 2d 304 (Fla. 1st DCA 1996). The state concedes it was error to habitualize the appellant on the two possession counts but argues that the appellant is precluded from raising the issue on appeal because she failed to raise the issue at sentencing or in a timely 3.800 motion before the trial court. The state’s argument is well taken under the amendments to Chapter 924, Florida Statutes, effectuated by Chapter 96-248, Laws of Fla. (1996).
Section 924.051(4), Florida Statutes (1996 Supp.), provides:
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 dis-positive issue, the defendant may not appeal the judgment or sentence.
The statute on its face does not make exception for sentencing errors apparent on the face of the record. However, the supreme court has recognized an inconsistency within the statute. The court recognized that the statute
states that a defendant pleading guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue cannot appeal the sentence. However, a defendant has not yet been sentenced at the time of the plea. Obviously, one cannot expressly reserve a sentencing error which has not yet occurred.
See Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996). Thus, to enable a defendant to raise sentencing errors on appeal, the supreme court amended Florida Rule of Criminal Procedure 3.800 to authorize the filing of a motion to correct a sentence or order of probation within ten days after the rendition of the sentence. See Amendments to Florida Rule of Appellate Procedure 9.020(g) & Florida Rule of Criminal Procedure S.800, 675 So. 2d 1374 (Fla.1996). The commentary explains that this new subdivision was added
in order to authorize the filing of a motion to correct a sentence or order of probation, thereby providing a vehicle to correct sentencing errors in the trial court and to preserve the issue should the motion be denied.
The effective date of both the new statute and the amended rule 3.800 was July 1,1996. The appellant was sentenced on July 17, 1996, after the effective date of the new statute and rule. The appellant has not challenged the applicability of the new statute or rule to her ease.
We accordingly affirm the challenged sentences.
MICKLE and PADOVANO, JJ., concur.
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Citator
Cited By (27 total)
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…51. See Colligan v. State, 701 So. 2d 910 (Fla. 4th DCA 1997) (habitualization); Cowan v. State, 701 So. 2d 353 (Fla. 1st DCA 1997) (departure sentence); Johnson v. State, 697 So. 2d 1245 (Fla. 1st DCA 1997) (departure sentence); Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997) (habitualization). In view of our holding today, we must recede from several of our earlier opinions. As indicated, this court will no longer recognize fundamental error in the sentencing context, contrary to the statements made…
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Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)…inal Procedure 3.800(b). See Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996). We have applied the new provisions in denying relief on direct appeal for unpre-served sentencing errors. See, e.g., Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997). But, consistent with the legislative intent that section 924.051 not be applied to preclude relief on direct appeal for unpre-served fundamental errors, Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d at 775,…
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Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)…rt to correct them without need for additional postconviction motions when this court has jurisdiction due to a preserved issue or a fundamental error. . Although the State concedes this error, it maintains that we should follow Middleton v. State, 689 So. 2d 304 (Fla. 1st DCA 1997), and decline to order the trial court to correct this error. We are not certain that our opinion conflicts with Middleton because it is not clear from that opinion whether there was a preserved issue or a fundamental error that g…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Amendments TO Fla. Rule OF App. Procedure 9.020(g) & Fla. Rule OF Crim. Procedure 3.800, 675 So. 2d 1374 (Fla. 1996)
- Augusta Hayes v. State, 677 So. 2d 304 (Fla. 1st DCA 1996)