A.L.B., A MINOR CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this juvenile direct appeal, the court affirms a disposition order committing A.L.B. to a moderate-risk facility despite the Department of Juvenile Justice's recommendation for probation, but expresses significant concerns about whether the trial court complied with appellate standards for departure dispositions and certifies questions of great public importance regarding appellate correction of unpreserved sentencing errors in Anders cases.
The court affirms the disposition order despite its concerns about compliance with E.A.R. v. State standards, holding that the absence of a timely objection and failure to file a motion to correct the disposition order before the initial brief precludes correction on direct appeal, even of fundamental sentencing errors. However, the court certifies questions of great public importance regarding whether appellate courts should correct unpreserved sentencing errors in Anders cases.
[1] An appellate court may not correct an unpreserved sentencing error in an Anders case on direct appeal if the defendant failed to file a motion to correct sentencing error…
[2] A motion to correct a sentencing error may be filed by appellate counsel.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[a]rticulate an understanding" and "[t]hen logically and persuasively explain why" departure is appropriate”
Establishes the strict standard required of juvenile courts when imposing departure dispositions under E.A.R. v. State
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Join FLexlaw to unlock all legal intelligenceA.L.B., a minor child, was the subject of a juvenile disposition proceeding. The Department of Juvenile Justice recommended that adjudication be withh…
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On this direct appeal in a juvenile case, we affirm the disposition order committing A.L.B. to a moderate-risk facility despite a recommendation by the Department of Juvenile Justice that adjudication be withheld and that she be placed on probation. We do not affirm, however, without “misgivings and concerns,” Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002), regarding whether the trial court complied with the strict standard set forth in E.A.R. v. State, 4 So.3d 614 (Fla.2009). See id. at 638 (requiring juvenile courts, in departure dispositions, to “[ajrticulate an understanding” and “[t]hen logically and persuasively explain why” departure is appropriate). These misgivings arise from uncertainty about the interplay of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), State v. Causey, 503 So.2d 321 (Fla.1987), and Florida Rule of Juvenile Procedure 8.135(b)(2).
Like the Washington court, we conclude that the absence of any objection at the time of sentencing, followed by the failure to file a motion to correct sentencing error before the initial brief was filed, precludes correction even of “fundamental” sentencing errors on direct appeal. See 814 So.2d at 1189-90. See also Maddox v. State, 760 So.2d 89, 102, 110 (Fla.2000) (holding “improper habitualization” to be fundamental error, although not susceptible to correction on direct appeal after the “window period [following] the enactment of the Criminal Appeal Reform Act” had closed); Colon v. State, 869 So.2d 1290, 1290 (Fla. 4th DCA 2004) (affirming convictions and sentences because “unpre-served sentencing error cannot be corrected in an Anders case”). But a motion to correct sentencing error “may be filed by appellate counsel.” Fla. R.Crim. P. 3.800(b)(2). Similarly, as to motions for correction of disposition or commitment orders, Florida Rule of Juvenile Procedure 8.135(b)(2) provides that the “motion may be filed by appellate counsel and must be served before the party’s first brief is served.”
No such motion was filed in the present case. In a juvenile case that is closely analogous to the present case, we certified as questions of great public importance the following:
NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR *192IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY W SUCH A CASE?
A.F.E. v. State, 853 So.2d 1091, 1095 (Fla. 1st DCA 2003) (affirming departure disposition in Anders case despite error because appellant failed to preserve the issue for review on direct appeal). We certify the same questions in the present case.
Today’s affirmance is without prejudice to appellant’s right to seek relief collaterally, see Wilson v. State, 898 So.2d 191, 193 (Fla. 1st DCA 2005); Colon, 869 So.2d at 1290, although such relief may be of little practical use to appellant. See A.F.E., 853 So.2d at 1093 (“That a party may seek collateral relief ... is of little practical assistance in juvenile cases, where the sentence imposed may be completed before any relief is granted.”).
Affirmed. Questions certified.
KAHN and CLARK, JJ., concur.
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Cited By (13 total)
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D.A.H. v. State, 212 So. 3d 399 (Fla. 4th DCA 2017)…as reversible error. See E.A.R. v. State, 4 So. 3d 614 (Fla. 2009); D.R. v. State, 178 So. 3d 478, 479 (Fla. 4th DCA 2016). We find that the issue was properly preserved. See H.D. v. Shore, 134 So. 3d 1062, 1063 (Fla. 4th DCA 2013); A.L.B. v. State, 23 So. 3d 190 (Fla. 5th DCA 2009). We therefore reverse for a new disposition hearing. Reversed and remanded. Warner, Gerber and Kuntz, JJ., concur.…
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C.C. v. State, 150 So. 3d 216 (Fla. 4th DCA 2014)…PPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY IN SUCH A CASE? Id. at 1095. It does not appear that a notice to invoke the jurisdiction of the supreme court was filed. The court again faced the same issue in A.L.B. v. State, 23 So. 3d 190 (Fla. 1st DCA 2009), and certified the same question as it had in A.F.E. It recently certified the same question in Powell v. State, 133 So. 3d [*219] 594 (Fla. 1st DCA 2014). It does not appear from a check of the history of the case on Westlaw tha…
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Ramos v. State, 156 So. 3d 591 (Fla. 1st DCA 2015)…ment and sentence. In order to reverse for sentencing errors in an Anders appeal, the appellant must have preserved the errors either by objecting when the sentence was imposed or by filing a motion to correct sentencing errors. See A.L.B. v. State, 23 So. 3d 190, 191 (Fla. 1st DCA 2009). Appellant did neither in this case; therefore we must [*592] affirm. But we do so without prejudice to his hereafter filing an appropriate post-conviction motion. See A.L.B., 23 So. 3d at 192 (“Today’s affirmance is without…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- E.A.R. v. State, 4 So. 3d 614 (Fla. 2009)
- Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002)
- Colon v. State, 869 So. 2d 1290 (Fla. 4th DCA 2004)
- Raynard Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005)
- Fraley v. State, 853 So. 2d 1091 (Fla. 3d DCA 2003)