Opinion
No. 1D22-179
08-23-2023
Ian LOPEZ, Appellant, v. STATE of Florida, Appellee.
Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam. DISMISSED . See Wilson v. State , 306 So. 3d 1267, 1273 (Fla. 1st DCA 2020) (holding that appellate review of the trial court's denial of a downward departure sentence is only appropriate when the trial court "misapprehends its discretion to depart or refuses to exercise that discretion as a matter of policy").
Osterhaus, C.J., and Ray, J., concur; Tanenbaum, J., dissents with opinion.
Tanenbaum, J., dissenting.
Rather than dismiss this appeal, I would affirm. Technically, Ian Lopez appeals both the judgment of conviction and the sentencing order. Each is a separate final order: the judgment, as the first final order; and the sentence, as a post-decretal, additional final order. Cf. Fla. R. App. P. 9.140(b)(3) (allowing for commencement of criminal appeal "at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence"); Clearwater Fed. Sav. & Loan Ass'n v. Sampson , 336 So. 2d 78, 79 (Fla. 1976) (describing a "final post decretal order" as "an order after judgment [that] is dispositive of any question" and "[t]o the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment"); see also Fla. R. Crim. P. 3.650 (defining "judgment" to mean "the adjudication by the court that the defendant is guilty or not guilty"); Fla. R. Crim. P. 3.670 (distinguishing between "final judgment of conviction" and imposition of sentence). We have jurisdiction to review both final orders. See Art. V, § 4(b)(1), Fla. Const. (providing jurisdiction to district courts of appeal "to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts"); Fla. R. App. P. 9.110(h) ("Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.").
Because the judgment was the product of a negotiated plea without any reservation, Lopez waived any challenge to the proceedings up to rendition of the judgment, except for one regarding jurisdiction. See State ex rel. Baggs v. Frederick , 124 Fla. 290, 168 So. 252, 253 (1936) (noting that "a voluntary plea of guilty waives any defects not jurisdictional in a criminal case"); Bridges v. State , 376 So. 2d 233, 233–34 (Fla. 1979) ("A voluntary plea of guilty in a criminal case waives all defects other than jurisdiction."). That is not to say he waived his right to appeal the judgment of conviction completely; rather, the range of challenges to the judgment he could raise on appeal is narrowed considerably. See Leonard v. State , 760 So. 2d 114, 116 (Fla. 2000) ("As with defendants who went to trial, defendants who plead guilty have a constitutional right to appeal, although the issues that they can raise on appeal are limited."); id. at 118 (explaining that a plea does not limit "the subject matter jurisdiction of the appellate courts"); see also Robinson v. State , 373 So. 2d 898, 902 (Fla. 1979) (explaining that "[a] plea of guilty cuts off any right to an appeal from court rulings that preceded the plea in the criminal process," and that "[o]nce a defendant enters a plea of guilty, the only points available for an appeal concern actions which took place contemporaneously with the plea"); id. (identifying the "exclusive and limited class of issues which occur contemporaneously with the entry of the plea that may be the proper subject of an appeal" as "(1) the subject matter jurisdiction, (2) the illegality of the sentence, (3) the failure of the government to abide by the plea agreement, and (4) the voluntary and intelligent character of the plea"); Fla. R. App. P. 9.140(b)(2)(A)(i), (ii) a.–c. (enumerating these limited matters that can be raised in an appeal of a judgment of conviction). Lopez fails to assert one of these specific challenges to the judgment in his initial brief, so our disposition as to the appeal of that final order is summary affirmance, not dismissal. See Leonard , 760 So. 2d at 119 (directing "the district courts [to] affirm summarily utilizing the procedure set forth in Florida Rule of Appellate Procedure 9.315(a)" if there has been no presentation of a reserved, dispositive issue or " Robinson issue"); Fla. R. App. P. 9.315(a) (allowing for summary affirmance of "the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated").
This same point about jurisdiction applies to Lopez's appeal of the sentencing order. As I already noted, the sentencing order is a separate final order that comes after the judgment of conviction. The constitution gives us jurisdiction to review any final order of the circuit court that is appealable as a matter of right, and Lopez has that right of appeal. See Maddox v. State , 760 So. 2d 89, 96–97 & n.6 (Fla. 2000) ("Accordingly, defendants who entered a plea of guilty or nolo contendere without expressly reserving an issue for appellate review may nonetheless raise sentencing errors on direct appeal as recognized in Robinson ."); cf. State v. Creighton , 469 So. 2d 735, 740 (Fla. 1985) (reaffirming "the principle that the state's right of appeal in criminal cases depends on statutory authorization and is governed strictly by statute" (emphasis supplied)); see also In re Amends. to the Fla. Rules of App. Proc. , 696 So. 2d 1103, 1104 (Fla. 1996) (highlighting that "the issue in Creighton was whether the State had a constitutional right to appeal" and that "the 1972 revision of article V" did not remove an individual's constitutional right to an appeal). Unless Lopez knowingly waived his right to appeal his sentence as part of his plea—and there is no indication that he did—his right to an appeal remains intact. And unless Lopez knowingly waived some argument regarding his sentence as part of his plea—again, no indication that he did—the existence of a plea is irrelevant to our consideration of Lopez's appeal of his sentence. We have jurisdiction, so dismissal is improper, regardless of the merit of Lopez's legal arguments here.
My position rests squarely upon our constitutional authority of review. Reliance on Wilson v. State , 306 So. 3d 1267 (Fla. 1st DCA 2020) (a decision currently on review in the supreme court) for dismissal, in my view, is misplaced. That decision is premised on the idea that we cannot review a trial court's refusal to depart downward at all because the Legislature has not authorized it by statute. See id. at 1272. The premise lacks foundation. When the criminal appeal is by the individual defendant and not the State, our jurisdiction is not dependent on legislative authorization. In re Amends. , 696 So. 2d at 1104–05 (noting "that the legislature may implement this constitutional right [to an appeal of a final order] and place reasonable conditions upon it so long as they [sic] do not thwart the litigants’ legitimate appellate rights"). That is, if a timely appeal of a circuit court final order is filed with us, as a constitutional matter, we have jurisdiction—regardless of whether there is a statute authorizing it. Wilson is incapable of providing constitutionally reconcilable support for dismissal of this case.
To be sure, in the exercise of our appellate jurisdiction, we entertain asserted sentencing errors only insofar as they have been preserved. See Maddox , 760 So. 2d at 97–98, 110 ; Fla. R. App. P. 9.140(b)(2)(A)(ii) d. (allowing defendant who has pleaded to raise sentencing error on appeal "if preserved"); cf. Fla. R. Crim. P. 3.800(b). Moreover, not just "any error that happens to occur in the sentencing context constitutes a ‘sentencing error’ under rule 3.800," but instead just those errors "apparent in orders entered as a result of the sentencing process." Jackson v. State , 983 So. 2d 562, 572 (Fla. 2008). Lopez's appeal checks both boxes.
Even so, the proper disposition when a sentencing error has not been preserved also is summary affirmance, not dismissal. See Leonard , 760 So. 2d at 119 (directing "the district courts [to] affirm summarily utilizing the procedure set forth in Florida Rule of Appellate Procedure 9.315(a)" if there has been no presentation of a "preserved sentencing error").
First, the error in the sentencing order that Lopez asserts here—that the trial court refused his request for a sentence below the lowest statutorily permissible sentence (read: a downward departure)—is cognizable as a reviewable "sentencing error" because it "related to the ultimate sanctions imposed," i.e. , the length of his incarceration. Id. Second, Lopez preserved it. Lopez's sole contention in this appeal is that the trial court erred in its conclusion that he failed to prove a lawful basis for a departure below the lowest permissible sentence determined from his scoresheet. According to Lopez, he proved by a preponderance of the evidence at least three legal grounds for a departure. As to that issue, he asked for the departures he now argues should have been applied, and he presented evidence that he contended supported the departures. The trial court rejected his request for a departure, stating as follows: "Well, you know, the issue for me is whether or not I can find any particular reason to downward depart in this matter and I'm not finding that there has been sufficient evidence for that." Lopez received the lowest sentence the law otherwise allows, but he argues that the trial court should have at least considered giving him a departure sentence. Not only do we have the constitutional jurisdiction to review the sentencing order, but we also have the authority to reach the supposed error that, according to Lopez, warrants a re-sentencing.
Within the proper exercise of our jurisdiction as I have described, I would review Lopez's contention on appeal in the manner directed by the supreme court in Banks v. State , 732 So. 2d 1065 (Fla. 1999). In the face of a request to depart downward, the trial court first "must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it." Id. at 1067. "This aspect of the court's decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling." Id. Once the trial court determines that there is a legal basis to depart, it next "must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case." Id. at 1068. Because "[t]his second aspect of the decision to depart is a judgment call within the sound discretion of the court," it "will be sustained on review" unless there is an abuse of discretion, i.e. , "no reasonable person would agree with the trial court's decision." Id. In my application of this analysis to the trial court's consideration of Lopez's request for a downward departure, I can find no error that affected the sentence imposed in the order on review. In sum, we have the constitutional authority to consider Lopez's appeal of both final orders before us. Dismissal, then, is not the proper disposition, and I dissent. Lopez, nevertheless, is foreclosed by his plea from making a cognizable argument for reversal of his judgment of conviction; and he has failed to advance a persuasive argument for vacating the sentencing order. Accordingly, I would affirm both the judgment and the sentencing order.
The case came to the district court as the State's appeal of a downward departure, an appeal that is statutorily authorized. I do not see this distinction as having any effect on the general, two-step approach to review that the supreme court has set out.
To be clear, if the trial court based its refusal to depart on improper considerations—such as failure to understand its discretion to depart, application of a blanket policy against departure, or application of improper factors in the sentencing decision—that could constitute an error in the sentencing process, which necessarily is an abuse of discretion. The remedy for these improper considerations, though, would be a vacatur of the sentencing order, which would require a re-sentencing, not imposition of a departure sentence. If the trial court did not base its refusal to depart on any such improper considerations, its decision not to depart is purely discretionary, and an appellant arguing the court erred in its refusal to depart will be entitled to no relief, regardless of the strength of the departure evidence.