RICKY MIZELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Mizell was convicted of seven DUI-related offenses, including vehicular homicide, stemming from a fatal accident. The court affirmed his convictions but remanded for correction of an obvious sentencing error where the trial court imposed a 14-year sentence on Count IV (DUI causing non-serious injury), a misdemeanor punishable by no more than one year.
The convictions are affirmed. The case is remanded with directions to amend the sentence on Count IV. The court avoids the split in authority on whether unpreserved sentencing errors constitute fundamental error, instead resolving the issue through the doctrine that trial counsel's failure to preserve a sentencing right that would have inevitably resulted in sentence correction constitutes ineffective assistance of counsel reviewable on direct appeal when facts are apparent in the record.
[1] A criminal sentence may be amended on direct appeal when the facts giving rise to an ineffective assistance of counsel claim are apparent on the face of the record.
[2] A defendant may receive ineffective assistance of counsel when counsel fails to preserve a right that would have otherwise resulted in the correction of a sentence.
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Join FLexlaw to unlock all legal intelligence“an obvious mistake was made as to count IV, in which the jury found Mizell guilty only of the lesser included offense of DUI causing non-serious injury, which is a misdemeanor punishable by no more than one year”
Establishes the core sentencing error: a 14-year sentence imposed on a misdemeanor with maximum one-year penalty
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Join FLexlaw to unlock all legal intelligenceMizell caused a fatal accident while driving under the influence. A jury convicted him on seven counts: some felonies and Count IV as the lesser inclu…
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SCHWARTZ, Chief Judge.
Mizell appeals from his convictions and fourteen year concurrent sentences on seven counts of offenses arising from a fatal accident caused by his driving under the influence. While the single claim of trial error has no merit, so that the convictions are affirmed, and the other concurrent sentences are correct, an obvious mistake was made as to count IV, in which the jury found Mizell guilty only of the lesser included offense of DUI causing non-serious injury, which is a misdemeanor punishable by no more than one year. §§ 316.193(3)(c)(l), 775.082(4)(a), Fla. Stat. (1997).
The state concedes the error but claims that Florida Rule of Appellate Procedure 9.140(d)1 precludes our consideration of the point because it was not raised below. On rebuttal, the defendant cites Orosco v. State, 710 So. 2d 1386 (Fla. 4th DCA 1998) for the proposition that an error of this kind is a fundamental one to which, by the terms of the underlying statute, § 924.061, Fla. Stat. (Supp.1996), the rule does not apply. Accord Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998)(en banc); Mason v. State, 710 So. 2d 82 (Fla. 1st DCA 1998). The state ripostes with Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)(en banc), review granted, 718 So. 2d 169 (Fla.1998)(table), which says that it does. See also Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998); Perry v. State, 714 So. 2d 563 (Fla. 1st DCA 1998). Because we are able to reach what we think is the correct result without doing so, we respectfully decline, at least in this ease, to involve ourselves in this fratricidal warfare. But see, Pryor v. State, 704 So. 2d 217, 217 (Fla. 3d DCA 1998)(“appeal ... barred, as it was not properly preserved for review and does not show fundamental error”).
It is apparent that, even if arguendo Maddox is correct that defense counsel’s failure to present the point precludes reversal, that very holding requires the concomitant conclusion that Mizell received ineffective assistance of his counsel in failing to preserve a right which would have otherwise inevitably resulted in a correction of his sentence. Applying the limited, but controlling, exception to the rule that ineffectiveness claims may not be reached on direct appeal which applies when, as here, “the facts giving rise to such a claim are apparent on the face of the record,” Gordon v. State, 469 So. 2d 795, 797 (Fla. 4th DCA 1985), review denied, 480 So. 2d 1296 (Fla.1985); Stewart v. State, 420 So. 2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Whitaker v. State, 433 So. 2d 1352 (Fla. 3d DCA 1983), we simply order the amendment of the sentence after remand.2
While this resolution of the case may not satisfy some of the more rabid of the judicial Thomists among us, we think it is easily more consistent with our duty to avoid the legal churning, see State v. Rucker, 613 So. 2d 460 (Fla.1993), which would be required if we made the parties and the lower court do the long way what we ourselves should do the short. Thus, we agree with Maddox, 708 So. 2d at 621, that the lack of preservation in the sentencing area necessarily involves ineffective assistance of counsel, but strongly disagree that anything is accomplished by not dealing with the matter at once.
Affirmed in part, i'emanded in part with directions.
. It is ironic that, although this amendment to the Florida Appellate Rules, and, more to the point, the Criminal Appeal Reform Act of 1996, ch. 96-248, Laws of Fla.; § 924.051, Fla. Stat. (Supp.1996), which engendered it, were largely meant to reduce a supposedly oppressive appellate caseload, they have had quite the opposite effect. In addition to creating an entirely new and difficult body of law of its own — including en banc consideration and certified questions of such arcane matters as whether an unpreserved error should result in affirmance or dismissal, Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998) — the Act has, as in this very case, required a resort to creative judging to achieve results which had been routinely and straightforwardly arrived at before. We will not resist the urge to refer to the relative merits of the cure and the disease or to observe that one should not repair something that is in no need thereof.
. Mizell need not be present.
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Citator
Cited By (24 total)
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Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)…is not a function for either this court or the legislature. See Art. V, § 2(a), Fla. Const. . At this point I must apologize to Chief Judge Schwartz, who must surely believe that I have run away and joined a Thomist monastery. See Mizell v. State, 716 So. 2d 829 (Fla. 3d DCA 1998). Jurisdiction is simply not a power to be taken lightly.…
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Langdon v. State, 947 So. 2d 460 (Fla. 3d DCA 2006)…h affect no one’s substantial rights, Goodwin v. State, 751 So. 2d 537 (Fla.1999), and, (d) most pointedly in this case, refuse to require that “the parties and the lower court do the long way what we ourselves should do the short.” Mizell v. State, 716 So. 2d 829, 830 (Fla. 3d DCA 1998); State v. Bodden, 756 So. 2d 1111 (Fla. 3d DCA 2000). The Court’s opinion is contrary to all of these principles — not to mention the even more significant ones that afford trial court orders a presumption of correctness whic…
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Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998)…han seven days after sentencing order). In light of our direct and specific consideration of the issue in this case, we recede, to this extent, from Pierre. . Contrast the critical reference to the preservation aspect of the Act in Mizell v. State, 716 So. 2d 829, 830 n.1 (Fla. 3d DCA 1998) [23 FLW D1978, D1979 n.1]. . It seems clear that in this respect the Act was meant to and did overrule such cases as Ree v. State, 565 So. 2d 1329 (Fla.1990) and Pierre v. State, 708 So. 2d at 1037.…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Stewart v. Florida, 460 U.S. 1103 (U.S. 1983)
- Dameion Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998)
- Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA 1985)
- Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)
- Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998)
- Whitaker v. State, 433 So. 2d 1352 (Fla. 3d DCA 1983)
- Mason v. State, 710 So. 2d 82 (Fla. 1st DCA 1998)