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Defendant pleaded guilty to burglary of a conveyance, grand theft of a quantity of mechanic's tools, and dealing in stolen property. Neither defendant or his counsel received notice that the State intended that he be sentenced as a habitual felony offender ("HFO") until, at the sentencing hearing, the State orally suggested that he qualified as an HFO. Defendant was then sentenced to concurrent terms of imprisonment and ordered to pay restitution to the victims. At issue was whether defendant's motion pursuant to Florida Rule of Criminal Procedure 3.800(b), claiming as sentencing errors the habitualization of the sentences without notice and insufficient evidence to support the amount of restitution ordered, properly preserved such errors. The court held that when, as in this instance, there was a clear sentencing error that affected the ultimate sanction imposed, it was cognizable under Rule 3.800(b). Accordingly, the court quashed that portion of the Second District's decision that reversed the trial court's order removing the HFO designation from defendant's sentence. The court held that the error complained of regarding the restitution order was not a sentencing error, but was one based on the sufficiency of the evidence that required a factual determination. Accordingly, it was not recognizable under Rule 3.800(b).Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
STATE OF FLORIDA,
[June 23, 2011]
Charles Mapp seeks review of the decision of the Second District Court of
Appeal in Mapp v. State, 18 So. 3d 33 (Fla. 2d DCA 2009), on the ground that it
expressly and directly conflicts with a decision of another district court of appeal
on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For
the reasons expressed herein, we quash that portion of the decision of the Second
District that concludes that Mapp‟s claim was not properly preserved and direct the
reinstatement of the trial court‟s order removing the habitual felony offender
(HFO) designation from his sentence. We approve the Second District‟s
affirmance of the denial of Mapp‟s second claim relating to the order of restitution.
Facts and Procedural History
The Second District described the facts below as follows:
In Polk County Circuit Court case number 06-9191, the
information charged Mr. Mapp with burglary of a conveyance and
grand theft of a quantity of mechanic‟s tools, both third-degree
felonies, and dealing in stolen property, a second-degree felony. In
circuit court case number 06-9192, the information charged burglary,
grand theft of an auto, and possession of cocaine, third-degree
felonies, and possession of drug paraphernalia, a first-degree
misdemeanor. He entered a straight up plea to all the charges.
Neither he nor his defense counsel received notice that the State
intended that he be sentenced as a habitual felony offender (HFO)
until, at the sentencing hearing, the State orally suggested that he
qualified as an HFO. In case number 06-9191, the court imposed
concurrent sentences of ten years‟ incarceration as an HFO for the
burglary and dealing in stolen property counts. In case number 069192, the court sentenced him to ten years‟ incarceration as an HFO
for the burglary and grand theft counts, five years‟ non-HFO
incarceration for the possession of cocaine count, and one year‟s
incarceration for the misdemeanor paraphernalia count. The
incarcerative terms in the second case were imposed concurrently
with each other but consecutive to the concurrent terms in the first
case. After hearing from the victims at the sentencing hearing about
their monetary losses, the court also ordered Mr. Mapp to pay a
substantial amount of restitution.
Mr. Mapp‟s counsel filed a motion pursuant to Florida Rule of
Criminal Procedure 3.800(b), claiming as sentencing errors the
habitualization of the sentences without notice and insufficient
evidence to support the amount of restitution ordered. The court
struck the HFO designation from the sentences and vacated the order
of restitution, but it did so well outside the permitted sixty-day time
limit to make a correction in the sentencing order.
Mapp, 18 So. 3d at 34-35(footnotes omitted). After noting that the circuit court‟s
order was a nullity because it occurred outside of the sixty-day window permitted
by the rule, the district court determined that the errors complained of in Mapp‟s
motion were not preserved for appeal because they were not “sentencing errors that
are cognizable in [rule 3.800(b)] motions.” Id. at 36. The Second District
concluded that the errors were errors in the sentencing process and not errors in the
sentencing order, and were therefore not preserved for appellate review when
counsel failed to object. Id. at 37. Accordingly, the court reinstated the habitual
felony offender sentences and order of restitution. Id.
Before reaching the merits of this case, we first note that there is no question
that Mapp was improperly classified as a habitual felony offender. As noted by the
Second District, the State conceded error on this issue. Mapp, 18 So. 3d at 34. It
is undisputed that Mapp did not receive the proper notice and that therefore, his
sentence is improper. See Ashley v. State, 614 So. 2d 486 (Fla. 1993) (holding
that for a defendant to be classified as a habitual felony offender following a guilty
or nolo plea, the defendant must be given written notice and the court must confirm
the defendant is personally aware of the possibility and consequences of habitual
felony offender sentencing.). In Ashley, Ashley pleaded no contest to battery of a
correctional officer. Id. at 487. Three days later, the State filed notice of its intent
to seek an enhancement as an HFO. Id. Ashley then sought unsuccessfully to
withdraw his plea and was later sentenced as an HFO. Id. Relying on section
775.084(3)(b), Florida Statutes (1989), and Florida Rule of Criminal Procedure
3.172, this Court held that for a defendant to be classified as an HFO after “a guilty
or nolo plea, the following must take place prior to acceptance of the plea: 1) The
defendant must be given written notice of intent to habitualize, and 2) the court
must confirm that the defendant is personally aware of the possibility and
reasonable consequences of habitualization.” Id. at 490. This Court then held that
because Ashley had not received written notice and had no personal understanding
that he would be declared a habitual felony offender or what such a classification
entailed, his HFO sentence had to be vacated. Id. at 491. Thus, we are only
addressing whether this error was properly preserved by a motion under 3.800(b).
Mapp argues that the Second District interpreted this Court‟s decision in
Jackson v. State, 983 So. 2d 562 (Fla. 2008), more stringently than intended by this
Court. In so doing, Mapp argues that the Second District misapplied Jackson and
that the sentencing order that designated him a habitual felony offender was
properly reviewable under rule 3.800(b).
Rule 3.800(b) provides:
(b) Motion to Correct Sentencing Error. A motion to correct
any sentencing error, including an illegal sentence, may be filed as
allowed by this subdivision. This subdivision shall not be applicable
to those cases in which the death sentence has been imposed and
direct appeal jurisdiction is in the Supreme Court under article V,
section 3(b)(1) of the Florida Constitution. The motion must identify
the error with specificity and provide a proposed correction. A
response to the motion may be filed within 15 days, either admitting
or contesting the alleged error. Motions may be filed by the state
under this subdivision only if the correction of the sentencing error
would benefit the defendant or to correct a scrivener‟s error.
(1) Motion Before Appeal. During the time allowed for the
filing of a notice of appeal of a sentence, a defendant or the state may
file a motion to correct a sentencing error.
(A) This motion shall stay rendition under Florida Rule of
Appellate Procedure 9.020(h).
(B) Unless the trial court determines that the motion can be
resolved as a matter of law without a hearing, it shall hold a calendar
call no later than 20 days from the filing of the motion, with notice to
all parties, for the express purpose of either ruling on the motion or
determining the need for an evidentiary hearing. If an evidentiary
hearing is needed, it shall be set no more than 20 days from the date of
the calendar call. Within 60 days from the filing of the motion, the
trial court shall file an order ruling on the motion. If no order is filed
within 60 days, the motion shall be considered denied. A party may
file a motion for rehearing of any order entered under subdivisions (a)
and (b) of this rule within 15 days of the date of service of the order or
within 15 days of the expiration of the time period for filing an order
if no order is filed.
(2) Motion Pending Appeal. If an appeal is pending, a
defendant or the state may file in the trial court a motion to correct a
sentencing error. The motion may be filed by appellate counsel and
must be served before the party's first brief is served. A notice of
pending motion to correct sentencing error shall be filed in the
appellate court, which notice automatically shall extend the time for
the filing of the brief until 10 days after the clerk of circuit court
transmits the supplemental record under Florida Rule of Appellate
(A) The motion shall be served on the trial court and on all trial
and appellate counsel of record. Unless the motion expressly states
that appellate counsel will represent the movant in the trial court, trial
counsel will represent the movant on the motion under Florida Rule of
Appellate Procedure 9.140(d). If the state is the movant, trial counsel
will represent the defendant unless appellate counsel for the defendant
notifies trial counsel and the trial court that he or she will represent
the defendant on the state's motion.
(B) The trial court shall resolve this motion in accordance with
the procedures in subdivision (b)(1)(B).
(C) In accordance with Florida Rule of Appellate Procedure
9.140(f)(6), the clerk of circuit court shall supplement the appellate
record with the motion, the order, any amended sentence, and, if
designated, a transcript of any additional portion of the proceedings.
Fla. R. Crim. P. 3.800(b).
In Jackson, we provided a thorough review of the history and intent of rule
3.800(b). See Jackson, 983 So. 2d at 570-73. To summarize, rule 3.800(b) was
intended to permit the preservation of errors in orders at the earliest possible time
in order to use judicial resources efficiently, not to abrogate the requirement for
contemporaneous objections because many errors are not immediately apparent at
sentencing and the trial judge is in the best position to resolve the error. Id.
However, when the error complained of affects the ultimate sanction imposed—as
does an HFO designation—it is cognizable under 3.800(b). Further, we have
stated that improper habitual offender sentencing contrary to specific statutory
requirements constitutes fundamental error. Maddox v. State, 760 So. 2d 89, 102
(Fla. 2000) (“Because we find that improper habitualization of the defendant
contrary to specific statutory requirements is a patent, serious error that has a
quantifiable effect on the length of the defendant‟s incarceration, we find that this
type of error should be corrected on direct appeal as fundamental.”). 1
Because Jackson states that “as written, rule 3.800(b) is not limited to
correcting „illegal‟ sentences or errors to which the defendant had no opportunity
to object” and that “the rule 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,” the Second District incorrectly held that Mapp‟s
improper sentencing as a habitual felony offender was not cognizable under rule
3.800(b). In other words, when, as here, there is a clear sentencing error that
affects the ultimate sanction imposed, it is cognizable under 3.800(b).
Accordingly, we quash that portion of the Second District‟s decision below that
reversed the trial court‟s order removing the HFO designation from Mapp‟s
1. Since Maddox and the amendment to rule 3.800(b), we have held that
fundamental error analysis does not apply to parties who could have availed
themselves of 3.800(b). See Brannon v. State, 850 So. 2d 453, 453 (Fla. 2003).
As noted in Brannon, we have attempted to address this by extending the time
period in which a defendant could file a motion under rule 3.800(b). See Brannon,
850 So. 2d at 455-56 (quoting Maddox, 760 So. 2d at 94) (“We anticipate that the
amendments to rule 3.800(b) recently promulgated by this Court in [Amendments
to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of
Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So. 2d 1015, 1017-18 (Fla.
2000)] should eliminate the problem of unpreserved sentencing errors raised on
direct appeal because the time in which a defendant can file a motion to correct a
sentencing error in the trial court is expanded[.]”).
Order of Restitution
We approve, however, the portion of the decision that affirmed the order of
restitution. Here, as above, Mapp complains of an error that the Second District
found not to be a “sentencing error” cognizable under rule 3.800(b). See Mapp, 18
So. 3d at 35-36. Specifically, the Second District noted that “at the close of
evidence from the victims about their monetary losses, defense counsel did not
object to what may have been insufficient evidence.” Id. at 36. The court
affirmed the order of restitution as originally imposed “because any error in [it] has
not been reserved for appellate review.” Id. at 37. We agree. The error
complained of here is not a sentencing error, but is one based on the sufficiency
and credibility of the evidence that requires factual determination. Accordingly, it
is not cognizable under rule 3.800(b).
For the foregoing reasons, we quash that portion of the decision of the
Second District that concluded that Mapp‟s claim was not properly preserved and
remand for reinstatement of the trial court‟s order removing the HFO designation
from his sentence. We approve the Second District‟s affirmance of the denial of
Mapp‟s second claim relating to the order of restitution.
It is so ordered.
PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, C.J., dissenting.
Because I conclude that the decision of the Second District in Mapp v. State,
18 So. 3d 33 (Fla. 2d DCA 2009), does not expressly and directly conflict with our
decision in Jackson v. State, 983 So. 2d 562 (Fla. 2008), or any other decision of
this Court or another district court, I would discharge this case.
In Mapp the Second District held that Mapp‟s argument that “he was
sentenced as a habitual offender without proper notice” was “not [an] error[ ] in the
sentencing order but rather in the sentencing process and, as such, must be
preserved by contemporaneous objection.” 18 So. 3d at 34, 37. The distinction
between error in a sentencing order and error in the sentencing process relied on by
the Second District is a distinction drawn directly from Jackson. We reached the
conclusion that the error at issue in Jackson could not be preserved under Florida
Rule of Criminal Procedure 3.800(b) because that error was “an error in the
sentencing process, not an error in the sentencing order.” 983 So. 2d at 574. Our
Jackson opinion indeed contains repeated references to the distinction between
errors in a sentencing order—which may be preserved under rule 3.800(b)—and
errors in the sentencing process—which are not subject to preservation under rule
3.800(b). Id. at 566 (“The rule was intended to permit preservation of errors in
orders entered as a result of the sentencing process . . . .”); id. at 572 (“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.”); id. (“We 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. at 574 (“A claim of
denial of counsel at sentencing, however, is an error in the sentencing process, not
an error in the sentencing order.”); id. at 578 (“[R]ule [3.800(b)] permits
preservation of errors in orders entered as a result of the sentencing process, not all
errors that happened to occur during that process.”).
Here, the error asserted by Mapp—the State‟s failure to give proper notice of
its intention to seek habitual offender sentencing—was indisputably a procedural
error. The decision in Mapp thus simply applies the distinction recognized in
Jackson and gives force to our recognition that “a procedural error in the
sentencing process” must—absent fundamental error—be preserved by a
contemporaneous objection. 983 So. 2d at 573.
Admittedly, the distinction drawn in Jackson between errors in a sentencing
order and errors in the sentencing process is not crystal clear. But the lack of
clarity in Jackson does not give us jurisdiction over a case simply because we
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disagree with the way that case applies Jackson. Under the Florida Constitution,
the jurisdiction asserted here exists only when the decision on review “expressly
and directly conflicts with a decision of another district court of appeal or of the
supreme court on the same question of law.” Art. V, § 3(b)(3), Fla. Const.
Jackson did not hold specifically that an error of the particular type raised by Mapp
is subject to preservation under rule 3.800(b). Nor did Jackson articulate any
broader rule with which Mapp “expressly and directly conflicts.” On the contrary,
Mapp expressly and directly follows Jackson‟s reasoning that “a procedural error
in the sentencing process” is not subject to preservation pursuant to rule 3.800(b).
983 So. 2d at 573.
Similarly, there is no express and direct conflict with our decision in
Maddox v. State, 760 So. 2d 89 (Fla. 2000), on the issue of fundamental error. The
improper habitual offender sentencing dealt with in Maddox—characterized by the
Court there as habitual offender sentences “imposed in violation of the statutory
requirements”—arose from the absence of sufficient predicate offenses to satisfy
the statutory requirements for such sentencing. Id. at 102. The procedural error
raised by Mapp is of an entirely different character from the errors at issue in
This Court does not have jurisdiction to review the Second District‟s
decision in Mapp. The case should be discharged.
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POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Second District - Case No. 2D07-4485
J. Marion Moorman, Public Defender, Deborah Kucer Brueckheimer and Douglas
S. Connor, Assistant Public Defenders, Bartow, Florida,
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Robert J. Krauss, Bureau
Chief and Donna S. Koch, Assistant Attorneys General, Tampa, Florida,
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