CARL MADISON STOKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-03-26
No. BF-17
THOMPSON and ZEHMER, JJ., concur., BARFIELD, J., concurs in part and dissents in part, with written opinion.
485 So. 2d 875 Florida District Court of Appeal, First District (1986) Negative Treatment
Cited by 7 cases

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Synopsis

Carl Stokes appealed his conviction for armed robbery and sexual battery. Although the court found no reversible error on the grounds raised by Stokes or his appellate counsel, it discovered that the trial judge failed to provide written reasons for departing from the sentencing guidelines scoresheet, violating Florida Rule of Criminal Procedure 3.701(d)(11). The court affirmed but certified an important question regarding appellate courts' obligations to review entire records in Anders cases.


Holding

The court affirmed Stokes's conviction and declined to address the sentencing departure issue because it was not raised by appellant or counsel. However, the court certified the issue to the Florida Supreme Court as one of great public importance regarding the scope of appellate review in Anders cases.


Headnotes

[1] A trial court's departure from recommended sentencing guidelines without a written statement of reasons violates Florida Rule of Criminal Procedure 3.701(d)(ll).

[2] A defendant is prejudiced by a departure from recommended sentencing guidelines without written reasons if the sentence could be commuted or clemency granted, even if the…

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Key Quotes

“Anders v. California does not require the appellate court to review the record in search of errors not raised by either appellant or his counsel.”

Establishes that appellate courts are not obligated to sua sponte search for errors in Anders cases unless raised by the parties

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Facts & Procedural History

Stokes was adjudicated guilty of sexual battery and armed robbery. The sentencing guidelines scoresheet recommended life imprisonment. The trial judge…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this appeal from a final judgment adjudicating appellant guilty of armed robbery and sexual battery, appellant’s counsel filed a brief, pursuant to Anders v. California,1 in which he states that he has examined the record and that in his professional judgment no reversible error appears. Appellant filed a pro se brief asserting reversible error on several grounds. We find no evidence of reversible error on the grounds raised by appellant. However, our review of the record in this case reveals an issue not raised by the Anders brief or by appellant’s pro se brief.

Appellant was adjudicated guilty of sexual battery and armed robbery. The sentencing guidelines scoresheet recommended life imprisonment. Appellant was sentenced to a term of natural life with no parole for the sexual battery and to 30 years for the armed robbery, to run consecutive with the life sentence. By sentencing appellant to a consecutive term of 30 years for the armed robbery, the trial judge departed from the recommended guideline sentence, but he failed to include a written statement delineating the reasons for the departure, thereby violating Florida Rule of Criminal Procedure 3.701(d)(ll).

It could be argued that this failure to supply a written statement of the reasons for departure constitutes only “harmless error” because, under section 921.001(8), Florida Statutes (Supp.1984), appellant cannot be released from prison during his lifetime. Section 921.001(8) provides that a person convicted of crimes committed on or after October 1, 1983, shall be released from incarceration only upon expiration of his sentence, as reduced by accumulated gain time. It is illogical and inconsistent with section 944.275, Florida Statutes (1983) to assume that a life sentence could be reduced by accumulated gain time and it therefore follows that, where the recommended guidelines sentence is life, any sentence in excess of the recommended sentence does not result in a longer incarceration of the defendant. However, it is possible that appellant’s sentence could be commuted to a term of years2 or that appellant could be granted clemency on the sexual battery charge,3 without affecting the consecutive 30 year term for armed robbery. In either case, appellant would have been prejudiced by the trial court’s departure without written reasons.

Anders v. California does not require the appellate court to review the record in search of errors not raised by either appellant or his counsel. This court in Reed v. State, 378 So. 2d 899 (Fla. 1st DCA 1980), suggested that the contentions raised by the appellant or by his counsel control the extent of the record which must be reviewed by the appellate court. The issue not having been raised by either appellant or his counsel, we decline to address the question of whether the trial court committed reversible error by departing from the recommended guidelines sentence without a written statement delineating the reasons for the departure. Because we deem it an issue of great public importance, we certify the following question:

WHETHER THE APPELLATE COURT IS REQUIRED TO REVIEW THE ENTIRE RECORD WHEN THE APPELLANT’S COUNSEL FILES A BRIEF PURSUANT TO ANDERS V. CALIFORNIA, STATING THAT NO GOOD FAITH ARGUMENT CAN BE MADE THAT REVERSIBLE ERROR HAS BEEN COMMITTED, AND IF SO, WHETHER THE APPELLATE COURT MUST CONSIDER POSSIBLE ERRORS INDICATED BY THE RECORD, BUT WHICH ARE NOT RAISED EITHER BY APPELLANT OR BY HIS APPELLATE COUNSEL.

AFFIRMED.

THOMPSON and ZEHMER, JJ., concur. BARFIELD, J., concurs in part and dissents in part, with written opinion.

. 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), rehearing denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377.

. Sec. 944.30, Fla.Stat. (1983).

. Sec. 940.01, Fla.Stat. (1983).

Other
BARFIELD, Judge,

BARFIELD, Judge,

concurring in part and dissenting in part:

I concur in certification of the question as a matter of great public importance. However, I dissent from the majority’s disposition of this case. In my opinion, although Anders v. California does not specifically require the appellate court to review the entire record when no appealable issues have been raised by either the appellant or his counsel, the United States Supreme Court did not contemplate that an appellate court, faced with the situation presented here, would close its eyes to reversible error appearing in the record simply because that specific error was not raised by the appellant or by his appellate counsel. Although valid arguments can be made for the position that appellate courts cannot and should not serve as appellate counsel for indigent defendants, worthwhile arguments can also be made that a defendant’s constitutional right to counsel and to meaningful appellate review is not preserved where the appellate court takes the course chosen by the majority in this case.

In my view, the better policy is for the appellate court to review the entire record in each case in which an Anders brief has been filed by appellate counsel, whether or not the appellant files a pro se brief. In the event the appellate court discovers possible reversible error, it should order counsel for both sides to brief the issue, while admonishing appellant’s counsel that it is his duty under the law to conscientiously examine the entire record in order to determine, in his professional opinion, whether any reversible error occurred during the trial proceedings and to file with this court a brief referring to anything in the record that might arguably support the appeal, pursuant to Anders v. California. In the event an attorney serving as counsel for appellants in such cases consistently files Anders briefs which ignore arguable issues, disciplinary action should be taken by the court or by The Florida Bar. In the case at issue, I would have ordered the parties to brief the issue, decided the case on its merits, and certified the question posed by the majority as one of great public importance.


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Citator

Cited By

  • State v. Causey, 503 So. 2d 321 (Fla. 1987)
    …view the record pursuant to the filing of an Anders brief? The state contends that Anders requires no more than a cursory review, i.e., only to the extent of errors previously pointed out. To support this contention, the state cites Stokes v. State, 485 So. 2d 875 (Fla. 1st DCA 1986). In that case, the district court held that “Anders ... does not require the appellate court to review the record in search of errors not raised by either appellant or his counsel.” Id. at 876. If appellate counsel has already b…
  • Smith v. State, 496 So. 2d 971 (Fla. 1st DCA 1986)
    …eviewed pertinent authorities to determine our exact duty under the circumstances. See, e.g., Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 State v. Davis, 290 So. 2d 30 (Fla.1974); Reed v. State, 378 So. 2d 899; Stokes v. State, 485 So. 2d 875 (Fla. 1st DCA 1986). We conclude that appellate counsel’s statement quoted above does not comply with the intent and spirit of Anders, and that counsel should file a brief presenting argument directed to possible error in respect to the judicial act…
    1 / 2
  • Gaston v. State, 505 So. 2d 1 (Fla. 1st DCA 1986)
    …Training Fund, without notice and an opportunity to object. See Jenkins v. State, 444 So. 2d 947 (Fla.1984). However, because that issue was raised neither by appellant nor his appellate counsel, we decline to address the question. Stokes v. State, 485 So. 2d 875 (Fla. 1st DCA 1986). Because we deem it an issue of great public importance, we again certify, as we originally did in Stokes, the following question: WHETHER THE APPELLATE COURT IS REQUIRED TO REVIEW THE ENTIRE RECORD WHEN THE APPELLANT’S COUNSEL…

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