JOSE LUIS VENTURA

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing.

No. 3D23-2069 Lower Tribunal No. F20-9300

Jose Luis Ventura, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

James Uthmeier, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.

Before FERNANDEZ, MILLER, and GOODEN, JJ.

MILLER, J.

UPON APPELLANT'S MOTION FOR REHEARING/REHEARING EN

BANC

We grant appellant's motion for rehearing and deny the motion for rehearing en banc as moot. We hereby withdraw our opinion dated April², 2025, and substitute the following opinion in its stead.

Appellant, Jose Luis Ventura, appeals from his convictions and sentences for carjacking and felony battery. We affirm on all grounds, save one. We reverse the life sentence for carjacking and remand for resentencing because the trial court erroneously believed that it lacked the discretion to impose a lesser term of incarceration under section 775.084(4)(d), Florida Statutes (2021).1

Sentencing errors implicating legal construction are subject to de novo review. See State v. Ingram, 299 So. 3d 546, 547 (Fla. 5th DCA 2020).

II

Florida Rule of Appellate Procedure 9.140(e) provides that “[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of

sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” In Brannon v. State, 850 So. 2d 452, 456 (Fla. 2003), the Florida Supreme Court succinctly synopsized the effect of this provision as follows: "for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.”

By its plain and unambiguous language, the rule is self-limiting. It extends only to “sentencing error[s].” See Fla. R. Crim. P. 3.800(b). What falls within the definition of a "sentencing error,” however, remains somewhat nebulous given the lack of consistency in the jurisprudential landscape.

Five years after deciding Brannon, our high court was again called upon to construe the reach of rule 3.800(b). In Jackson v. State, 983 So. 2d 562 (Fla. 2008), the court confronted the issue of whether the deprivation of counsel during the sentencing process was a “sentencing error,” requiring preservation by either a contemporaneous objection or the filing of a postsentence rule 3.800(b) motion. Justice Cantero, writing for the court, clarified the scope of rule 3.800(b):

Although quoted above, the definition of “sentencing error" in the Court Commentary to rule 3.800 bears repeating: “[S]entencing errors include harmful errors in orders entered as a result of the sentencing process. This includes errors in orders of probation,

orders of community control, cost and restitution orders, as well as errors within the sentence itself.” The commentary thus explains that rule 3.800(b) is intended to permit defendants to bring to the trial court's attention errors in sentence-related orders, not any error in the sentencing process.

Jackson, 983 So. 2d at 572 (citation omitted) (emphasis and alteration in original). The court further explained that “[w]e have never held that any error that happens to occur in the sentencing context constitutes a 'sentencing error' under the rule. Instead, errors we have recognized as 'sentencing errors' are those apparent in orders entered as a result of the sentencing process.” Id. (emphasis in original). The court reasoned,

The rule was intended to permit preservation of errors in orders entered as a result of the sentencing process[—]in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself. It was not intended to abrogate the requirement for contemporaneous objections. Denial of counsel at sentencing, while occurring during the sentencing process, is not an error in an “order[] entered as a result of the sentencing process.” Therefore, to assert such a claim on appeal, no motion under rule 3.800(b) need be filed. Such errors, however, remain subject to the contemporaneous objection rule; if not preserved at trial, they may be reviewed on appeal only for fundamental error.

Id. at 566 (citation omitted) (second alteration in original).

Our sister courts have explored the contours of rule 3.800(b) in several Jackson progeny cases. In Brown v. State, 994 So. 2d 480 (Fla. 1st DCA 2008), the First District Court of Appeal considered whether the trial court's reliance on acquittals by reason of insanity in crafting an appropriate

sentence constituted a sentencing error. Citing Jackson, the court concluded the claim of error fell outside the ambit of rule 3.800(b) because the defendant “allege[d] error in the sentencing process, not that the alleged procedural error [was] apparent on the face of the order." Id. at 481.

The Second District Court of Appeal employed similar reasoning in two elaborated decisions. In the first case, Hannum v. State, 13 So. 3d 132 (Fla. 2d DCA 2009), the court addressed whether an error predicated upon the trial court's reliance on lack of remorse at sentencing was cognizable under rule 3.800(b)(2). It held “that rule 3.800(b)(2) is not the proper mechanism for preserving for appeal the issue of whether the court improperly considered certain factors in imposing sentence.” Id. at 135.

In the second case, Mendez v. State, 28 So. 3d 948 (Fla. 2d DCA 2010), the court addressed whether a vindictive sentencing claim could be raised in the first instance on direct appeal. The court noted "that rule 3.800(b)(2) is not the proper mechanism for [the appellant]'s challenge to his sentence; such an error is not a 'sentencing error' because it occurs during the sentencing process and is not an error in an order entered as a result of the sentencing process." Id. at 950.

But then in Cromartie v. State (Cromartie I), 16 So. 3d 882 (Fla. 1st DCA 2009), the First District departed from its reasoning in Brown. The court

considered whether "the trial judge's stated policy of mechanically rounding up a prison sentence to the nearest whole number . . . without any reflection on the individual merits of a particular defendant's case is arbitrary and consequently a denial of due process” and concluded it was constrained to affirm because no contemporaneous objection was asserted. Id. at 882-83 (citing Jackson, 983 So. 2d 562). The Florida Supreme Court exercised conflict jurisdiction and quashed the First District's decision. See Cromartie v. State (Cromartie II), 70 So. 3d 559, 560 (Fla. 2011). It held that the rounding-up policy was not a “sentencing error” under rule 3.800(b), but rather a fundamental procedural error in the sentencing process capable of review on direct appeal. See id. at 563.

These decisions highlight the subtle yet critical distinction between those errors that fall within the purview of rule 3.800(b) and those that occur during the sentencing process. Here, the trial court believed it was legislatively divested of the discretion to impose anything other than a life sentence. But section 775.084(4)(e) does provide an avenue for crafting a lesser sentence. See id. (“If the court finds, pursuant to . . . paragraph (3)(c), that it is not necessary for the protection of the public to sentence a defendant who meets the criteria for sentencing as . . . a violent career criminal, with respect to an offense committed on or after October¹, 1995,

sentence shall be imposed without regard to this section.”). The error cannot be discerned from the four corners of the sentencing order. Nor is it an error which inheres in the sentence itself.

Indeed, had the trial court acknowledged its discretion, it would have been entitled to impose the same sentence. See Goldwire v. State, 73 So. 3d 844, 846-47 (Fla. 4th DCA 2011) ("[W]e remand this case to the trial court for re-sentencing so the trial court can exercise its discretion in sentencing [the defendant]. While the trial court might issue the same sentence, we remand to allow the trial court to properly consider all sentencing options with the knowledge that it has discretion, rather than being of the belief it is required to sentence in a particular way.”). Consequently, this case involves “a claim of error in the sentencing process” which "is not cognizable” under rule 3.800(b), as explained in Jackson, Brown, Hannum, and Cromartie II. See Pifer v. State, 59 So. 3d 225, 228 (Fla. 2d DCA 2011).

III

The failure to recognize judicial discretion can constitute fundamental error when it affects the integrity of the sentencing process. Here, the trial court's mistaken belief precluded its consideration of potentially mitigating evidence bearing on the propriety of a less onerous sentence. This error is fundamental, as it equates with a denial of due process. See Williams v.

State, 249 So. 3d 721, 722-23 (Fla. 5th DCA 2018) (reversing and remanding for the "trial court to make a determination as to whether it [was] necessary for [the defendant] to be sentenced as a violent career criminal for the protection of the public and to impose a sentence accordingly”); Soanes v. State, 31 So. 3d 914, 914-15 (Fla. 4th DCA 2010) (reversing and remanding for resentencing because “the trial court erred during sentencing when it stated that it did not think it had any discretion other than to sentence the defendant to life in prison as a violent career criminal”); Harris v. State, 849 So. 2d 449, 450 (Fla. 3d DCA 2003) (remanding for resentencing because, "as the State concede[d], the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established"); cf. Butner v. State, 217 So. 3d 1162, 1164 (Fla. 2d DCA 2017) (“When it is unclear from the record whether the trial court would have imposed the same sentence if the trial court had known it had discretion, we must vacate the defendant's sentence and remand the case for resentencing.").² Accordingly, we reverse Ventura's sentence for carjacking and remand for a new sentencing hearing and affirm in all other respects.

Affirmed in part; reversed in part; remanded.