Summerlin v. State

Full title: ROGER DALE SUMMERLIN, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Second District

Date published: Apr 20, 2005

Case No. 2D03-3874 (Fla. Dist. Ct. App. Apr. 20, 2005)

Opinion

Case No. 2D03-3874.

Opinion filed April 20, 2005.

Appeal from the Circuit Court for Polk County, James A. Yancey, Judge, and Steven L. Selph, Acting Circuit Judge.

James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Chief Judge.

Roger Dale Summerlin appeals sentences imposed after he admitted violating his probation in two separate cases. Counsel for Mr. Summerlin initially filed a brief under the guidelines established in Anders v. California, 386 U.S. 738 (1967). This court issued an order striking the brief and requiring counsel to file either a merits brief or a motion to correct sentencing error regarding whether the sentences were erroneously imposed by a successor judge without compliance with Florida Rule of Criminal Procedure 3.700(c)(1). Counsel chose to file a merits brief addressing this issue. The State has responded that the issue is not preserved for appeal. We agree.

A claim that a defendant should have been sentenced by the judge who accepted the plea must be preserved to be cognizable on appeal. See Bell v. State, 30 Fla. L. Weekly D823 (Fla. 5th DCA Mar. 24, 2005). At the sentencing hearing, Mr. Summerlin's trial counsel did not object to the successor judge imposing the sentences. This issue might have been preserved by the filing of a motion to correct sentencing error. See Snyder v. State, 870 So. 2d 140 (Fla. 2d DCA 2004). Although Mr. Summerlin's trial counsel filed a motion to reduce sentence with the trial court, citing Florida Rule of Criminal Procedure 3.800(c), that motion did not allege a sentencing error and no motion raising this issue was filed pursuant to Florida Rule of Criminal Procedure 3.800(b). We therefore affirm the sentences without prejudice to Mr. Summerlin seeking postconviction relief or filing a petition alleging ineffective assistance of appellate counsel on this basis. See, e.g., Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004).

KELLY and LaROSE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.