Prentice v. State

319 So.3d 57

Michael Anthony PRENTICE, Appellant,

v.STATE of Florida, Appellee.

No. 4D19-3498

District Court of Appeal of Florida, Fourth District.

[June 2, 2021]

Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING AND REHEARING EN BANC

Conner, J.

We deny the appellant's motion for rehearing and rehearing en banc, but withdraw our opinion dated February 17, 2021, and issue the following in its place:

Michael Anthony Prentice ("Appellant") appeals certain sentences and sentencing orders entered below. We agree the trial court erred in several ways, but with the exception of one error concerning the imposition of costs which may require an additional hearing, all of the errors can be ministerially corrected without further proceedings in the trial court. Thus, we affirm the sentences imposed but remand for the ministerial corrections, unless the cost issue requires a further hearing. We explain the errors and the reasoning of our disposition.

Background

Appellant was formally charged with three counts of lewd or lascivious molestation on a victim less than 12 years of age by an offender 18 years of age or older and two counts of attempted sexual battery on a child less than 12 years old by a perpetrator 18 years of age or older. Appellant entered an open plea of no contest to all charges. The plea form contained language stating that Appellant was advised by his counsel that "both mandatory and discretionary fees and costs may be imposed" for the services of his attorney at the time of sentencing, listing amounts totaling $550. The plea form further advised that Appellant had "the right to contest the fees and costs at the time of sentencing," and contained a provision stating that Appellant agreed to the handwritten amounts and waived his right to contest the stated amounts. The trial court accepted Appellant's plea. Appellant's prior record consisted of one misdemeanor driving offense.

At sentencing, Appellant requested the statutory minimum sentence: twenty-five years in prison followed by a lifetime of probation for the molestation counts. The State advised that section 775.082(3)(a) 4., Florida Statutes, gave the trial court the option of either a sentence of life imprisonment or a split sentence of no less than twenty-five years followed by a lifetime of probation. The State requested a life sentence. Appellant was adjudicated guilty and sentenced on each molestation count to life in prison with a twenty-five year mandatory minimum, and to thirty years in prison on each attempted sexual battery count. In pronouncing the life sentences on each molestation count, the trial court listed each count and then stated, for each: "that you do spend the rest of your life in prison. I do sentence you to life." After separately announcing the length of imprisonment for each molestation count, the trial court then stated: "Each of those also have a twenty-five year minimum sentence that I'm required to impose."

As to the attempted sexual battery counts, neither side made a request for a specific sentence. As to both of those counts, the trial court imposed the maximum sentence of thirty years in prison. The sentences for all five counts were imposed concurrently.

After pronouncing the sentences for each count and upon the trial court's request, the court clerk announced various costs and fees, including $304.50 as a transcript fee owed to the public defender in addition to the amount listed in the plea form. The trial court then imposed the announced fees and costs. The trial court did not tell Appellant he had the right to contest the transcript fee and no evidence was submitted to the trial court to support the transcript fee.

Thereafter, Appellant gave notice of appeal. During the pendency of this appeal, Appellant filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In the motion, Appellant argued that: (1) resentencing was required on the molestation counts because the sentences of life in prison with a twenty-five year mandatory minimum were not statutorily authorized; (2) there was a scrivener's error in the judgments for the attempted sexual battery counts which failed to include a citation to section 774.04, Florida Statutes; and (3) the $304.50 transcript fee to the public defender must be stricken because it was imposed without sufficient proof and without Appellant receiving an opportunity to be heard in order to contest the fee. The trial court did not rule on the motion within sixty days after it was filed.

Appellate Analysis

The standard of review for a motion to correct sentencing error is de novo. Willard v. State , 22 So. 3d 864, 864 (Fla. 4th DCA 2009) (per curiam). Likewise, "[a]n appellate court applies a de novo standard of review to a claim that the trial court imposed an illegal sentence." Claycomb v. State , 142 So. 3d 916, 917 (Fla. 4th DCA 2014) (citing State v. Valera , 75 So. 3d 330, 331–32 (Fla. 4th DCA 2011) ).

The Lewd and Lascivious Molestation Sentences

Appellant argues that his concurrent sentences to life with a twenty-five year mandatory minimum on the molestation counts are illegal. Appellant correctly points out that while a violation of section 800.04(5)(b) Florida Statutes, is a life felony, the offense is subject to a specific sentencing statute, section 775.082(3)(a) 4.a., Florida Statutes (2016). That sentencing statute states:

Except as provided in sub-subparagraph b.,¹ for a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:

(I) A term of imprisonment for life; or

(II) A split sentence that is a term of at least 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person's natural life, as provided in s. 948.012(4).

§ 775.082(3)(a)4.a., Fla. Stat. (2016). Citing Hernandez v. State , 162 So. 3d 130, 131 (Fla. 4th DCA 2014), Appellant correctly argues that the two possible sentences for a life felony violation of section 800.04(5)(b), are: "either a life sentence or a split sentence" involving at least twenty-five years imprisonment followed by the remainder of the defendant's life on probation. We agree with Appellant that the statute does not authorize both a life sentence and a twenty-five year mandatory minimum, and that the twenty-five year mandatory minimum only applies where a split sentence is imposed under section 775.082(3)(a) 4.a.(II), not where a life sentence is imposed under section 775.082(3)(a) 4.a.(I). See id.

Appellant further argues that the remedy for the illegal sentence in this case is a de novo sentencing hearing, as that was the remedy on remand in both Hernandez and Leon v. State , 190 So. 3d 243, 244 (Fla. 5th DCA 2016).

As it did in Hernandez , the State in this case properly concedes that Appellant's life sentences for the molestation counts erroneously included a twenty-five year mandatory minimum. However, the State argues that the trial court's pronouncement of sentence makes clear that it intended to impose life sentences for the molestation counts, a fact not present in either the Hernandez or Leon decisions. As described above, the transcript reveals that for each count, the trial court separately stated that Appellant was to "spend the rest of your life in prison ," followed by "I do sentence you to life." After imposing the sentences for all three counts separately, the trial court pronounced: "Each of those also have a twenty-five year minimum mandatory sentence that I'm required to impose."

Based on the words used to impose the sentences, the State contends that rather than remanding for de novo resentencing, the trial court should be allowed to "hold a hearing for the limited purpose of striking the minimum mandatory portion of the sentence it erroneously imposed." It is problematic that the State's answer brief cites no legal authority to support its requested remedy. However, we disagree with Appellant's assertion that a de novo resentencing is required in this case, where the cases he relies upon do not address the application of the "would have imposed" standard for determining whether a de novo sentencing hearing is required to correct a sentencing error.²

Our review of the appellate record in this case leads us to the firm conclusion that the trial court imposed life sentences for each molestation count. There is nothing in the record to suggest that the trial court had some intent to impose a term-of-years sentence. The statements of both defense counsel and the State before the trial court announced the sentences on the molestation counts clearly show that both sides agreed the trial court was to impose either a life sentence or a term-of-years sentence. This is not a case in which there is some ambiguity as to whether the trial court intended a life sentence or a term-of-years sentence. Thus, we hold that the trial court properly exercised its discretion to impose a life sentence for each molestation count, but improperly added a mandatory minimum sentence for each sentence. We further hold that under the applicable "would have imposed" standard, the life sentence may be upheld. See Sherrod v. State , 292 So. 3d 804, 805 (Fla. 4th DCA 2020) (holding that resentencing not required when the record clearly demonstrated that the trial court would have imposed the same sentence despite the error regarding the grounds for probation revocation); Butner v. State , 217 So. 3d 1162, 1164 (Fla. 2d DCA 2017) ("When it is unclear from the record whether the trial court would have imposed the same sentence if the trial court had known it had discretion, we must vacate the defendant's sentence and remand the case for resentencing."); Muyico v. State , 50 So. 3d 1227, 1228 (Fla. 4th...