IN THE SUPREME COURT OF FLORIDA CASE NO. THIRD DISTRICT CASE NO CARLOS FLEITAS, Petitioner, -vs- STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. THIRD DISTRICT CASE NO CARLOS FLEITAS, Petitioner, -vs- STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida (305) CARLOS GONZALEZ Assistant Public Defender Florida Bar No Counsel for Petitioner

2 TABLE OF CONTENTS PAGE INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 3 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN THOMAS v. STATE, 763 So. 2d 316 (Fla. 2000), AS WELL AS THE SECOND DISTRICT COURT OF APPEAL S DECISION IN JELKS v. STATE, 770 So. 2d 183 (Fla. 2d DCA 2000). CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF FONT i

3 TABLE OF CITATIONS CASES PAGE(S) Castor v. State, 365 So. 2d 701 (Fla. 1978)... 3 Fleitas v. State, 28 Fla. L. Weekly D324 (Fla. 3d DCA January 29, 2003)... 6 Green v. State, 463 So. 2d 1139 (Fla. 1985)... 7 Jelks v. State, 770 So. 2d 183 (Fla. 2000)... 4,5,6,7,8,9 Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002)... 3 Maddox v. State, 760 So. 2d 89 (Fla. 2000)...5,6 Santeufemio v. State, 745 So. 2d 1002 (Fla. 2d DCA 1999),... 7 Thomas v. State, 763 So. 2d 316 (Fla. 2000)... 4,5,6,7,8,9 OTHER AUTHORITIES FLORIDA RULES OF CRIMINAL PROCEDURE Rule passim ii

4 IN THE SUPREME COURT OF FLORIDA CASE NO. THIRD DISTRICT CASE NO CARLOS FLEITAS, Petitioner, -vs- STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF PETITIONER ON JURISDICTION INTRODUCTION The Third District Court of Appeal has concluded that Florida Rule of Criminal Procedure cannot be used to preserve nonfundamental errors committed during a probation violation hearing. However, the Court did not dispute the fact that a probation violation hearing is a deferred sentencing proceeding, nor did it disagree that any nonfundamental sentencing error must be corrected or preserved for appellate review through a Rule motion to correct 1

5 illegal sentence. Rather, the Court merely concluded that [a] probation violation hearing is subject to the same Florida Evidence Code as any other hearing with the exception that hearsay is admissible. This holding, while technically correct, leaves unanswered the question presented by this case: whether nonfundamental errors committed during a probation violation/deferred sentencing proceeding may be corrected pursuant to Rule Accordingly, this Court should grant the petition for discretionary review and clarify what appears to be an ambiguity in this rule s construction and application. 2

6 STATEMENT OF THE CASE AND FACTS Carlos Fleitas appealed the revocation of his probation and accompanying conviction and sentence on the ground that the trial court erred in excluding his sister from the courtroom during the probation violation hearing. (A.1-2). Mr. Fleitas did not contemporaneously object to his sister s exclusion from the courtroom. (A.2). However, because a probation violation hearing is a deferred sentencing proceeding, Mr. Fleitas urged that the trial court s error could be corrected pursuant to Florida Rule of Criminal Procedure (A.2). Rejecting this argument, the Third District Court of Appeal concluded that [a] probation violation hearing is subject to the same Florida Evidence Code as any other hearing with the exception that hearsay is admissible. (A.2). Quoting Leveritt v. State, 817 So. 2d 891, 900 (Fla. 1st DCA 2002), which cited this Court s decision in Castor v. State, 365 So. 2d 701, 703 (Fla. 1978), the Court noted that [o]bjections are required to place the trial court on notice that error may have been committed to provide the court an opportunity to correct any error. (A.2). A notice to invoke this Court s discretionary jurisdiction was filed on February 20,

7 SUMMARY OF THE ARGUMENT [A]ny sentencing error, including an illegal sentence must be corrected by a motion filed pursuant to Florida Rule of Criminal Procedure Indeed, such a motion must be filed in order to preserve a non-fundamental sentencing error for appellate review. Because a probation violation hearing is a deferred sentencing proceeding, Carlos Fleitas claim that his sister was improperly excluded from the courtroom during his hearing was properly preserved for review through a rule 3.800(b) motion to correct sentencing error. The Third District Court of Appeal s decision to the contrary expressly and directly conflicts with this Court s decision in Thomas v. State, 763 So. 2d 316 (Fla. 2000) as well as the Second District Court of Appeal s decision in Jelks v. State, 770 So. 2d 183 (Fla. 2000). Accordingly, this Court should grant the petition for discretionary review. 4

8 ARGUMENT THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN THOMAS v. STATE, 763 So. 2d 316 (Fla. 2000), AS WELL AS THE SECOND DISTRICT COURT OF APPEAL S DECISION IN JELKS v. STATE, 770 So. 2d 183 (Fla. 2d DCA 2000). Under Florida Rule of Criminal Procedure 3.800(b), [a] motion to correct any sentencing error, including an illegal sentence, may be filed as allowed by this subdivision. In the wake of the Criminal Appeals Reform Act of 1996 and this Court s decision in Maddox v. State, 760 So. 2d 89 (Fla. 2000), all nonfundamental sentencing errors must be corrected pursuant to Rule Indeed, such a motion must be filed if such errors are to be preserved for appellate review. In Thomas v. State, 763 So. 2d 316 (Fla. 2000), the defendant claimed that fundamental error occurred when the trial court orally found that he had violated one condition of his probation, but the written order revoking probation indicated that he had violated an additional seven conditions of probation. Absent preservation, the district court concluded that this scrivener s error, which had no quantitative effect on the sentence imposed, could not be corrected on appeal as fundamental error. Id. Months later, the Second District Court of Appeal confronted a similar problem in Jelks v. State, 770 So. 2d 183 (Fla. 2d DCA 2000). There, the defendant challenged the adequacy of the 5

9 revocation order on the ground that it was insufficient because it did not identify those conditions of community control which he violated. Id. at 184. Relying principally on this Court s decision in Maddox, the Second District concluded that non-fundamental sentencing errors, particularly those which did not affect the sentence imposed, would no longer be cognizable on direct appeal absent preservation. Id. at 185. In light of these cases, there is no dispute that non-fundamental sentencing errors must be corrected pursuant to Florida Rule of Criminal Procedure Further, there is no debating the point that such a motion must be filed in order to preserve a nonfundamental sentencing error for appellate review. The question here, then, is whether Rule only reaches a certain type of sentencing error. The Third District Court of Appeal concludes that an error committed during a probation violation hearing may not be reviewed on appeal absent a contemporaneous objection. See Fleitas v. State, 28 Fla. L. Weekly D324 (Fla. 3d DCA January 29, 2003). That conclusion, however, runs afoul of Rule 3.800's plain meaning, not to mention this Court s decision in Thomas and the Second District s decision in Jelks. Though rejecting the applicability of Rule to Mr. Fleitas case, the Third District does not dispute that a probation violation hearing is merely a deferred sentencing proceeding. Indeed, [t]he 6

10 purpose of a probation revocation hearing is to determine whether the terms of a defendant s probation for a prior crime have been violated. As such, a probation revocation hearing constitutes a deferred sentencing proceeding. See Santeufemio v. State, 745 So. 2d 1002, 1003 (Fla. 2d DCA 1999), citing Green v. State, 463 So. 2d 1139 (Fla. 1985). By its terms, Rule 3.800(b) may be used to correct any sentencing error, including an illegal sentence... If, then, a probation violation hearing is merely a deferred sentencing proceeding, and if Rule 3.800(b) may be used to correct any sentencing error, it is not a leap to suggest that Mr. Fleitas claim was properly preserved for appellate review. Though the Third District dismissed the applicability of Rule to Mr. Fleitas case, the fact remains that both the rule s plain meaning, and the decisions in Thomas and Jelks contemplate and, indeed, mandate its use in situations such as this case. The failure to allow defendants to preserve errors committed during their probation violation/deferred sentencing hearings implies that the plain meaning of Rule is vague. In rejecting Mr. Fleitas claim, the Third District has implicitly determined that the reference to any sentencing error in the text of Rule is limited to a specified class of sentencing errors. Yet, the Court does not identify which sentencing errors fall outside the rule s ambit. Perhaps the Court was troubled by the fact that Mr. Fleitas claim had nothing to do with the actual 7

11 sentence imposed at the close of the hearing. Yet, rule is not solely limited to errors affecting the actual sentence imposed. By its own terms, rule 3.800(b) may be used to correct or preserve for appellate review any sentencing error, including an illegal sentence. Indeed, Thomas and Jelks, both of which dealt with errors committed during a probation violation/deferred sentencing proceeding which did not affect the actual sentence imposed, do not circumscribe Rule 3.800's applicability as the Third District has done in the present case. Because the Third District s decision runs counter to the plain meaning of Florida Rule of Criminal Procedure 3.800(b) and conflicts with this Court s decision in Thomas and the Second District s decision in Jelks, discretionary review is warranted 8

12 CONCLUSION Based on the foregoing, Carlos Fleitas asks this Court grant the petition for discretionary review on the ground that the decision below expressly and directly conflicts with this Court s decision in Thomas v. State, 763 So. 2d 316 (Fla. 2000) and the Second District Court of Appeal s decision in Jelks v. State, 770 So. 2d 183 (Fla. 2d DCA 2000). Respectfully submitted, BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida BY: CARLOS GONZALEZ Assistant Public Defender 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to the Office of the Attorney General, c/o Michael J. Neimand, 110 Southeast 6th Street, Ft. Lauderdale, Florida on this day of February, CARLOS GONZALEZ Assistant Public Defender CERTIFICATE OF FONT I HEREBY CERTIFY that the type used in this brief is 14-point, proportionately spaced, Times New Roman. CARLOS GONZALEZ Assistant Public Defender 10