SHERIFF F. RASHID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sheriff F. Rashid appeals his convictions for felony battery and possession of a concealed weapon by a convicted felon, with an Anders motion to withdraw filed by his counsel. The court affirms the convictions but reverses and remands to strike an illegal prison releasee reoffender (PRR) mandatory minimum sentence on the concealed weapon count.
The court affirms Rashid's convictions but reverses and remands to strike the illegal PRR designation and mandatory minimum sentence on the concealed weapon count, finding that although the sentence is illegal, it qualifies as a minor sentencing error appropriate for resolution under Anders procedure where the state concedes the illegality.
[1] An appellate court may grant a motion to withdraw filed by counsel pursuant to Anders v. …
[2] A prison releasee reoffender (PRR) sentence may not be imposed for possession of a concealed weapon by a convicted felon if that offense is not listed in the relevant sta…
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Join FLexlaw to unlock all legal intelligence“Anders procedure is not appropriate where counsel raise substantial sentencing errors of any kind.”
Establishes the standard for when Anders procedure must be abandoned due to substantial errors requiring full briefing.
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Join FLexlaw to unlock all legal intelligenceRashid was convicted of felony battery and possession of a concealed weapon by a convicted felon. He received a five-year mandatory sentence as a pris…
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PER CURIAM.
We withdraw our previously issued opinion and substitute the following in its place. Sheriff F. Rashid appeals his convictions and sentences for felony battery and possession of a concealed weapon by a convicted felon. His assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
We grant the motion to withdraw and affirm Rashid’s convictions and sentences, except for his five-year mandatory sentence as a prison releasee reoffender (“PRR”) on the count for possession of a concealed weapon. Rashid challenged this sentence as illegal in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b), and the state conceded in its response to that motion that the PRR designation was illegal on that count because section 775.082(9)(a)(l), Florida Statutes (2003), does not include possession of a concealed weapon by a convicted felon as an offense for which the court may impose PRR sentencing. However, the trial court did not rule on this motion within sixty days, and it was deemed denied pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B).
Appellant’s Anders counsel acknowledges that PRR sentencing was illegal on this count and presents it as a minor sentencing issue which should be disposed of in this Anders proceeding. While the Supreme Court of Florida has recognized that appellate courts must follow Anders procedure even when costs or other minor sentencing errors are raised in “no merits” briefs, “Anders procedure is not appropriate where counsel raise substantial sentencing errors of any kind.” In re Anders Briefs, 581 So. 2d 149, 152 (Fla.1991). There is no bright line test for determining what constitutes a “minor sentencing error” and what makes an error “substantial,” thereby removing it from Anders procedure. However, we acknowledge that the second district entertained a comparable challenge to a PRR sentence in an Anders appeal, reversing and remanding to strike the PRR designation on one count in Bozeman v. State, 846 So. 2d 616 (Fla. 2d DCA 2003). There, the state advised the court that it did not object to striking the PRR designation.
Here, the state conceded in its response filed in the trial court that the PRR sentence is illegal on the possession count. We see no reason to remove this issue from the Anders procedure in these circumstances.
Accordingly, we reverse and remand to the trial court with instructions to strike the PRR designation and mandatory minimum sentence on count two. Otherwise, we affirm.
WARNER, FARMER and TAYLOR, JJ., concur.
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F.D. v. State, 947 So. 2d 690 (Fla. 4th DCA 2007)…nders brief. The state filed a response to counsel’s motion which voiced no objection to the relief requested. Minor sentencing issues may be disposed of in an Anders proceeding where there is no objection from the state. See, e.g., Rashid v. State, 932 So. 2d 1205 (Fla. 4th DCA 2006). The amended disposition order in this case contained superfluous language regarding the retention of jurisdiction beyond the child’s nineteenth birthday, very similar to that which was addressed in B.C. v. State, No. 4D06-250,…
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Arlando Boykin v. State, 164 So. 3d 1281 (Fla. 2d DCA 2015)…icted felon and armed tampering with evidence were not qualifying offenses under the PRR statute. The trial court nonetheless applied the PRR designation to all of Boykin’s sentences. This was error. See § 775.082(9)(a)(l); see also Rashid v. State, 932 So. 2d 1205, 1206 (Fla. 4th DCA 2006) (striking the PRR designation from a sentence for felon in possession of a firearm). Boykin preserved his objection to the PRR designations on his two nonqualifying offenses through a timely motion to correct sentence pur…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Scotty D. Bozeman v. State, 846 So. 2d 616 (Fla. 2d DCA 2003)