TRACY GAUTHIER FORTNER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Tracy Gauthier Fortner petitioned for relief alleging ineffective assistance of appellate counsel for failing to raise a sentencing error. The court granted the petition in part, finding that appellate counsel was ineffective for failing to challenge the imposition of drug offender probation, which was not a statutorily authorized sanction for her cocaine trafficking conviction.
The court held that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct sentencing error because the drug offender portion of Fortner's sentence was illegal, as it was not authorized by law. The court granted the petition in part and remanded to the trial court with instructions to convert the drug offender probation to regular probation.
[1] A claim of ineffective assistance of appellate counsel is cognizable when counsel fails to file a motion to correct a sentencing error based on an unauthorized sanction.
[2] Drug offender probation is statutorily authorized only for specific cocaine offenses, not for trafficking in cocaine.
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 claim that counsel was ineffective in failing to file a rule 3.800(b)(2) motion to correct sentencing error when the sentence imposed is not authorized by law is cognizable in a petition alleging ineffective assistance of counsel.”
Establishes that ineffective assistance claims based on failure to challenge unauthorized sentences are cognizable in appellate counsel ineffectiveness petitions.
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Join FLexlaw to unlock all legal intelligenceFortner was convicted after a jury trial of trafficking in cocaine in violation of section 893.135(1)(b)(1)(a), Florida Statutes. The trial court sent…
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Tracy Gauthier Fortner, in her petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds, and we deny, without comment, the remaining ground.
Fortner was convicted after jury trial of trafficking in cocaine in violation of section 893.135(l)(b)(l)(a), Florida Statutes (2006). The trial court sentenced her to forty-five months in prison with a three-year minimum mandatory prison sentence, followed by sixty months of drug offender probation. The judgment and sentence were affirmed on direct appeal. Fortner v. State, 3 So.3d 326 (Fla. 2d DCA 2009) (table decision). In ground one of the petition, Fortner contends that counsel was ineffective in failing to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) on the basis that drug offender probation was not a statutorily authorized sanction for the offense of trafficking in cocaine. A claim that counsel was ineffective in failing to file a rule 3.800(b)(2) motion to correct sentencing error when the sentence imposed is not authorized by law is cognizable in a petition alleging ineffective assistance of counsel. See Agosto-Molina v. State, 933 So.2d 26, 27-28 (Fla. 2d DCA 2006).
Section 948.20, Florida Statutes (2006), authorizes drug offender probation for chronic drug abusers whose criminal conduct is a violation of sections 893.13(2)(a) or (6)(a), Florida Statutes (2006). Because Fortner was convicted of violating section 893.135(l)(b)(l)(a), Florida Statutes (2006), the trial court could not legally sentence her to drug offender probation. See, e.g., Anderson v. State, 941 So.2d 446 (Fla. 4th DCA 2006) (holding that the imposition of drug offender probation for sale of cocaine constituted an illegal sentence under rule 3.800(a)). A sentencing error that can be preserved for appeal under rale 3.800(b)(2) is an error in *1277the sentence itself. Jackson v. State, 983 So.2d 562, 578 (Fla.2008). This encompasses any illegal sentence claim that could be raised under rule 3.800(a). Id. at 573-74.
We therefore hold that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct sentencing error on the basis that the drug offender portion of Fortner’s sentence was illegal because it was not authorized by law. Because a new appeal would be redundant in this instance, see Agosto-Moli-na, 933 So.2d at 28, we remand to the trial court with instructions that Fortner’s drug offender probation be converted to regular probation. On remand, the trial court, at a hearing with Fortner present, may add special conditions of probation related to substance abuse, provided that the special conditions comply with the requirements of Biller v. State, 618 So.2d 734 (Fla.1993). See Taylor v. State, 17 So.3d 310, 312 (Fla. 5th DCA 2009).
Petition denied in part, and granted in part.
NORTHCUTT and SILBERMAN, JJ., Concur.
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Martinez v. State, 123 So. 3d 701 (Fla. 1st DCA 2013)…nd remanding for new trial on one count). On direct appeal, before filing an initial brief, moreover, appellate counsel can file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to preserve many sentencing errors. See Fortner v. State, 23 So. 3d 1275, 1276 (Fla. 2d DCA 2010) (“A claim that counsel was ineffective in failing to file a rule 3.800(b)(2) motion to correct sentencing error when the sentence imposed is not authorized by law is cognizable in a petition alleging ineffective assistance o…
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Cruz v. State, 194 So. 3d 574 (Fla. 2d DCA 2016)…We find merit only in his claim in ground one of his original petition that appellate counsel was ineffective for failing to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Fortner v. State, 23 So. 3d 1275, 1276 (Fla. 2d DCA 2010) (stating that a claim that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct a sentence that is not authorized by law is cognizable in a petition filed under rule 9.141(d)). The State…
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Simmons v. State, 205 So. 3d 793 (Fla. 2d DCA 2016)…or the criminal mischief. In ground I of his petition, Simmons argues that appellate counsel was ineffective for failing to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Fortner v. State, 23 So. 3d 1275, 1276 (Fla. 2d DCA 2010) (stating that a claim that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct a sentence that is not authorized by law is cognizable in a petition filed under rule 9.141(c)). He conten…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006)
- Anderson v. State, 941 So. 2d 446 (Fla. 4th DCA 2006)
- Dennis v. State, 17 So. 3d 310 (Fla. 4th DCA 2009)
- Taylor v. State, 17 So. 3d 310 (Fla. 5th DCA 2009)