Opinion
No. 97-2002
Opinion filed March 10, 1999 JANUARY TERM, 1999
An appeal from the Circuit Court for Dade County, Manuel A. Crespo, Judge; L.T. No. 96-5184.
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Wendy Benner-Leon, Assistant Attorney General, for appellee.
Before COPE, FLETCHER, and SORONDO, JJ.
ON MOTION FOR REHEARING AND CERTIFICATION
Defendant-appellant Jordan moves for rehearing, contending that the decision in this case is in conflict with Pierre v. State, 708 So.2d 1037 (Fla. 3d DCA 1998). In Pierre, this court reversed an upward departure sentence and remanded for sentencing within the guidelines, because the trial court did not file written reasons within seven days. See id. at 1037-38. We distinguish Pierre, because the opinion nowhere considered the effect of the Criminal Appeal Reform Act, as well as recently-adopted Florida Rule of Appellate Procedure 9.140(d) and Florida Rule of Criminal Procedure 3.800(b). The Reform Act and the cited rules dictate denial of relief in this case. See also Weiss v. State, 720 So.2d 1113, 1115 (Fla. 3d DCA 1998).
§ 924.051, Fla. Stat. (Supp. 1996).
Although it does not have an impact in this case, Weiss held that the time interval for filing written departure reasons runs from the date that the sentencing judgment is filed, not the date the sentence is orally pronounced. See id. at 1114-15 n. 2. Weiss receded, to that extent, from Pierre. See id. at 1115 n. 2.
In the present case the sentencing judgment was filed June 12 and the written departure reasons were filed June 26, which is still beyond the seven-day statutory interval.
Defendant also argues that the opinion in the present case is in conflict with Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998). We disagree. In Mizell, the defendant had been sentenced to a fourteen-year term on count IV, a misdemeanor which carried a maximum penalty of one year. See id. at 829-30. Declining to reach the question whether, under the Reform Act, this should be treated as fundamental error, see id. at 830, the court found this to be one of the exceptional cases in which ineffectiveness of trial counsel could be considered on direct appeal. See id. The panel found that trial counsel had been ineffective for failing to raise this point in the trial court, and directed that the sentence on count IV be reduced to the one-year maximum. See id.
In the present case, by contrast, the Mizell decision does not apply. As explained in parts IV and V of the opinion in the present case, the failure to raise this issue in the trial court has prevented the development of a proper record. Further, based on the existing record, the delay in filing the departure order must be treated as harmless. See also Weiss v. State, 720 So.2d 1113 (Fla. 3d DCA 1998); § 924.051(1)(a), Fla. Stat. (Supp. 1996).
Defendant argues, and we acknowledge, that the decision in this case is in conflict with Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998) (en banc), review granted, number 92,805 (Fla. July 7, 1998). As explained in part IV of the panel opinion and footnote 6, this court recognizes that a sentencing error can be treated as fundamental, while the Fifth District takes the position that no sentencing error will be recognized as fundamental. See Maddox, 708 So.2d at 619.
We decline, however, to certify direct conflict with Maddox. Resolution of that conflict would not affect the outcome of this appeal. Under the Fifth District rule in Maddox, an unobjected-to sentencing error can never be fundamental error, id., and if this case were pending in the Fifth District, the judgment would be affirmed. Thus, under either district's rule, the defendant is entitled to no relief.
Under the Florida Supreme Court's procedures, when a district court of appeal certifies a decision as being in direct conflict or of great public importance, and the litigant timely files a notice to invoke Florida Supreme Court jurisdiction, the case proceeds to briefing on the merits and the decision whether to exercise discretionary review is postponed until consideration of the merits. See Fla. S.Ct. Internal Operating Procedures § IIA(2); Fla.R.App.P. 9.120. Because resolution of the Maddox conflict would not make a difference in this case, we decline to invoke the certification procedure. See State v. Oisorio, 657 So.2d 4, 5-6 (Fla. 3d DCA 1995), approved, 676 So.2d 1363 (Fla. 1996).
This ruling is, of course, without prejudice to defendant to petition for discretionary review under article V, section 3(b)(3) of the Florida Constitution.
Motion for rehearing and certification denied.