ROGER DALE SUMMERLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the issue of sentencing by a successor judge was not preserved for appeal because no objection was made at the sentencing hearing.
[1] A claim that a defendant should have been sentenced by the judge who accepted the plea must be preserved to be cognizable on appeal.
[2] Failure to object to a successor judge imposing sentences at the sentencing hearing waives the issue for appeal.
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Join FLexlaw to unlock all legal intelligenceRoger Dale Summerlin admitted violating probation. A successor judge imposed sentences, and his counsel filed a brief arguing this was an error.…
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ALTENBERND, Chief Judge.
Roger Dale Summerlin appeals sentences imposed after he admitted violating his probation in two separate cases. Although one circuit court judge initially accepted Mr. Summerlin’s plea of admission to the violation of probation, a successor judge imposed the sentences based upon the violation.
Counsel for Mr. Summerlin initially filed a brief under the guidelines established in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This court issued an order striking the brief and requiring counsel to file either a merits brief or a motion to correct sentencing error regarding whether the sentences were erroneously imposed by a judge other than the judge who accepted Mr. Summerlin’s plea of admission without compliance with Florida Rule of Criminal Procedure 3.700(c)(1). Counsel chose to file a merits brief addressing this issue. The State has responded that the issue is not preserved for appeal. We agree.
A claim that a defendant should have been sentenced by the judge who accepted the plea must be preserved to be cognizable on appeal. See Bell v. State, 895 So. 2d 1290 (Fla. 5th DCA 2005).
At the sentencing hearing, Mr. Summerlin’s counsel did not object to the successor judge imposing the sentences. This issue might have been preserved by the filing of a motion to correct sentencing error. See Snyder v. State, 870 So. 2d 140 (Ela. 2d DCA 2004).
Although Mr. Summerlin’s trial counsel filed a motion to reduce sentence with the trial court, citing Florida Rule of Criminal Procedure 3.800(c), that motion did not allege a sentencing error and no motion raising this issue was filed pursuant to Florida Rule of Criminal Procedure 3.800(b).
We therefore affirm the sentences without prejudice to Mr. Sum-merlin seeking postconviction relief or filing a petition alleging ineffective assistance of appellate counsel on this basis. See, e.g., Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004).
KELLY and LaROSE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jackson v. State, 952 So. 2d 613 (Fla. 2d DCA 2007)…t sentencing or in a rule 3.800(b) motion could not be considered on appeal. The Fifth District reached the same conclusion regarding a vindictive sentencing claim in Allende v. State, 882 So. 2d 472 (Fla. 5th DCA 2004). See also Summerlin v. State, 901 So. 2d 997 (Fla. 2d DCA 2005) (holding that a claim that a defendant was improperly sentenced by a successor judge without a showing of necessity is a sentencing error that must be preserved by objection at sentencing or by a rule 3.800(b) motion); Hakkenberg…
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Naki Harris v. State, 959 So. 2d 794 (Fla. 2d DCA 2007)…e process claims with respect to sentencing as claims of sentencing error within the scope of rule 3.800(b)(2). See Jackson v. State, 952 So. 2d 613 (Fla. 2d DCA 2007); Harley v. State, 924 So. 2d 831 (Fla. 2d DCA 2005); see also Summerlin v. State, 901 So. 2d 997 (Fla. 2d DCA 2005). . Two Fourth District cases appear to be inconsistent with the holding in Doty. See Evans v. State, 816 So. 2d 742, 744-45 (Fla. 4th DCA 2002) (holding that trial court could consider fact that defendant carried or possessed fir…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004)
- Snyder v. State, 870 So. 2d 140 (Fla. 2d DCA 2004)
- Ellis D. Bell v. State, 895 So. 2d 1290 (Fla. 5th DCA 2005)