CHAD PIFER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Chad Pifer appealed the denial of his postconviction relief claims and challenged his resentencing by a successor judge without a showing of necessity. The Florida Second District Court of Appeal affirmed, holding that resentencing by a successor judge without showing necessity is an error in the sentencing process, not the sentencing order itself, and thus cannot be preserved under Rule 3.800(b)(2) but must be reviewed for fundamental error, which Pifer failed to establish.
Resentencing by a successor judge without showing necessity is an error in the sentencing process, not in the sentencing order, and therefore cannot be preserved under Rule 3.800(b)(2). The error is reviewable only for fundamental error, which Pifer did not establish, as he failed to show the resentencing process was equivalent to a denial of due process.
[1] A motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) may only preserve errors in the sentence itself, not errors in the sentencing…
[2] An error in the sentencing process, such as resentencing by a successor judge without a showing of necessity, can only be reviewed for fundamental error if not contempora…
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Join FLexlaw to unlock all legal intelligence“a "sentencing error" that can be preserved under rule 3.800(b)(2) is an error in the sentence itself — not any error that might conceivably occur during a sentencing hearing.”
Establishes the distinction between errors in the sentence versus errors in the sentencing process under Jackson v. State framework.
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Join FLexlaw to unlock all legal intelligenceIn December 2005, Pifer entered pleas in eighteen separate cases involving burglary, dealing in stolen property, grand theft, possession of parapherna…
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Chad Pifer appeals an order denying his claims for postconviction relief. He also challenges his resentencing on remand.1 We affirm, but we write to address an issue that was raised in the trial court by way of a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The issue involves Pifer’s resentencing, on remand, by a suc*227cessor judge without a showing that a substitution of judges was necessary.
In December 2005, Pifer entered a plea in eighteen separate cases involving burglary, dealing in stolen property, grand theft, possession of paraphernalia, and resisting arrest without violence. Pifer was adjudicated guilty and sentenced. The judgments and sentences were affirmed on appeal. Pifer v. State, 951 So.2d 40 (Fla. 2d DCA 2007).
In February 2008, Pifer filed a motion to correct illegal sentence, which was summarily denied. Pifer appealed the summary denial of his motion, and this court reversed and remanded for reconsideration. Pifer v. State, 8 So.3d 1154 (Fla. 2d DCA 2009).2 On remand, the postconviction court reconsidered Pifer’s claim as well as additional claims for postconviction relief that had been raised by Pifer. In October 2009, the postconviction court granted relief on the sentencing claim and the judge who presided over the postcon-viction claims also resentenced Pifer. This judge was not the judge who had accepted Pifer’s plea, but Pifer did not object to the successor judge presiding at his resentenc-ing hearing. The postconviction court otherwise denied relief on Pifer’s additional claims, including an ore tenus motion to withdraw the plea'that was made by Pifer’s counsel at the conclusion of the evidentiary hearing on Pifer’s postconviction claims.
This appeal ensued. During the pen-dency of this appeal, Pifer filed a motion to correct sentencing error pursuant to rule 8.800(b)(2). In the motion, Pifer did not assert a specific error in the corrected sentencing order that was entered on remand. Rather, Pifer challenged only the fact that he was resentenced by a successor judge without the showing of necessity required by Florida Rule of Criminal Procedure 3.700(c)(1). The judge who resen-tenced Pifer denied his rule 3.800(b)(2) motion in a lengthy order explaining that she had more recent familiarity with Pi-fer’s cases than did the judge who original ly sentenced Pifer and that Pifer had an opportunity to object before resentencing but failed to do so.
On appeal, Pifer argues that the post-conviction court erred in denying the ore tenus motion to withdraw plea and also that he must be afforded a new sentencing hearing because he was resentenced by a successor judge without a showing that a substitution of judges was necessary. We affirm the denial of the motion to withdraw plea without further discussion.
We also affirm on the issue concerning Pifer’s resentencing by a successor judge. Our decision on this issue turns on whether resentencing by the successor judge is a sentencing error as contemplated by rule 3.800(b)(2). Although Pifer raised this issue in a rule 3.800(b)(2) motion, he did not contemporaneously object to resentencing by the successor judge. In fact, during the resentencing hearing the judge asked all the attorneys if they wanted to make any additional arguments concerning resentencing and asked Pifer if he wished to say anything before she pronounced the sentence, and neither defense counsel nor Pifer expressed any concern about the successor judge presiding over resentencing.
If resentencing by á successor judge without a showing of necessity is a “sentencing error,” the error can be preserved by a rule 3.800(b)(2) motion. If it is not, absent a proper objection,'this court may *228review the issue only for fundamental error.
Explaining that. “[a]ppellate courts have disagreed on what kind of errors constitute ‘sentencing errors’ subject to [rule 3.800(b) ],” the supreme court has provided a framework for determining whether a particular error constitutes a sentencing error. Jackson v. State, 983 So.2d 562, 569 (Fla.2008). Under Jackson, “ ‘a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself — not any error that might conceivably occur during a sentencing hearing.’” Id. at 573 (quoting Jackson v. State, 952 So.2d 613, 616 (Fla. 2d DCA 2007) (Stringer, J., specially concurring)). Rule 3.800(b) “may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process — that is, orders related to the sanctions imposed.” Jackson, 983 So.2d at 574. However, á claim of error in the sentencing process is not cognizable in a motion under rule 3.800(b). See id.
Here, the resentencing by a successor judge without a showing of necessity, if error at all, was an error in the sentencing process, not in the sentencing order. As such, Pifer’s rule 3.800(b)(2) motion could not preserve this claim of error. It can be reviewed only for fundamental error. See Jackson, 983 So.2d at 568-69.
“‘[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.’” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (alteration in original) (quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)). Pifer has not established that the resentencing process, which was conducted by the successor judge, was equivalent to a denial of due process. Furthermore, this resentencing process did not offend a fundamental constitutional right that would mandate reversal without regard to its effect on the outcome. See, e.g., Jackson, 983 So.2d at 576.
We thus affirm on this issue because we find that Pifer did not adequately preserve this issue and fundamental error did not occur.
In reaching this conclusion, we are mindful that this court has previously considered such a claim cognizable under rule 3.800(b)(2). See Boyd v. State, 988 So.2d 1242, 1245 (Fla. 2d DCA 2008); Kramer v. State, 970 So.2d 468 (Fla. 2d DCA 2007); Young v. State, 950 So.2d 516 (Fla. 2d DCA 2007); Lopez v. State, 905 So.2d 1045 (Fla. 2d DCA 2005); Snyder v. State, 870 So.2d 140 (Fla. 2d DCA 2004); Persaud v. State, 821 So.2d 411, 413 (Fla. 2d DCA 2002); see also Horne v. State, 918 So.2d 1011 (Fla. 2d DCA 2006) (granting petition alleging ineffective assistance of appellate counsel where appellate counsel failed to file a rule 3.800(b)(2) motion challenging a violation of rule 3.700(c)(1)); Hakkenberg v. State, 889 So.2d 935 (Fla. 2d DCA 2004) (same). However, these cases did not address the supreme court’s Jackson decision, in which it clarified the scope of rule 3.800(b). To the extent that our prior decisions determined that a claim of error with respect to resentencing by a successor judge in violation of rule 3.700(c)(1) could be preserved by a rule 3.800(b)(2) motion, they are inconsistent with the principles set forth by the supreme court in Jackson, which we are bound to follow.
Affirmed.
LaROSE and CRENSHAW, JJ., Concur.
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Innocent Gedehomme v. State, 160 So. 3d 533 (Fla. 2d DCA 2015)
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Boyd v. State, 106 So. 3d 11 (Fla. 2d DCA 2013)…resentencing because Boyd had been illegally resentenced by a successor judge without a showing that the original sentencing judge was unavailable. Boyd v. State, 988 So. 2d 1242 (Fla. 2d DCA 2008), abrogated on procedural grounds by Pifer v. State, 59 So. 3d 225 (Fla. 2d DCA 2011). As a result of that proceeding, the original sentencing judge orally resentenced Boyd on November 17, 2008, again removing the PRR designation from the battery on a law enforcement offieer charge. However, no written sentence was…
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Labombard v. State, 74 So. 3d 154 (Fla. 2d DCA 2011)…. We have recently held that a defendant must object to the successor judge at the sentencing hearing, and we have receded from our previous cases holding that this error may be raised for the first time in a rule 3.800(b)(2) motion. Pifer v. State, 59 So. 3d 225 (Fla. 2d DCA 2011). Labombard did not object at sentencing, and as such he is not entitled to appellate relief on this ground. But because we are remanding for resentencing, Labombard will have another opportunity to assert his right to be sentenced…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- Hopkins v. State, 632 So. 2d 1372 (Fla. 1994)
- Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004)
- Jackson v. State, 952 So. 2d 613 (Fla. 2d DCA 2007)
- Snyder v. State, 870 So. 2d 140 (Fla. 2d DCA 2004)
- Krishna Persaud v. State, 821 So. 2d 411 (Fla. 2d DCA 2002)
- Walden v. State, 905 So. 2d 1045 (Fla. 1st DCA 2005)
- Horne v. State, 918 So. 2d 1011 (Fla. 2d DCA 2006)
- Kramer v. State, 970 So. 2d 468 (Fla. 2d DCA 2007)