Opinion
Case No. 2D19-3692
03-24-2021
Tyler Christopher MARSHALL, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
LaROSE, Judge.
In this direct criminal appeal, Tyler Christopher Marshall challenges the trial court's denial of his motion to correct sentencing error, filed under Florida Rule of Criminal Procedure 3.800(b)(2). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The issue Mr. Marshall brings to us was not preserved for appellate review. Thus, we affirm. Our opinion highlights the importance of preserving issues for our review.
Background
The State charged Mr. Marshall with (1) felony battery after prior conviction, a third-degree felony (count one); (2) bribery, a second-degree felony (count two); and (3) resisting an officer without violence, a first-degree misdemeanor (count three). See §§ 784.03(2), 838.015, 843.02, Fla. Stat. (2018). Mr. Marshall pleaded guilty to all offenses.
Mr. Marshall scored 63.3 points on his Criminal Punishment Code (CPC) scoresheet. The trial court sentenced him to time served on the misdemeanor. For the felonies, the trial court sentenced him to concurrent terms of three years in prison, followed by one year of community control, followed by two years of drug offender probation. Mr. Marshall appealed.
Mr. Marshall then filed a rule 3.800(b)(2) motion with two claims. First, he argued that he did not qualify for drug offender probation under section 948.20, Florida Statutes (2018) ; he was not "convicted of an enumerated chapter 893 offense or ... specifically agreed to drug offender probation in a plea agreement." Second, he asserted that his sentence for count one exceeded the statutory maximum. The State conceded error on the second claim.
At a calendar call, the parties agreed that Mr. Marshall's probation for count one should be reduced by one year. The trial court granted Mr. Marshall's second claim and reserved ruling on the first. The trial court directed the clerk of the court to prepare a new judgment and sentence that reduced count one's probationary sentence by one year. The clerk filed a corrected probation order, reflecting one year of drug offender probation for count one.
Later, the trial court held a hearing on the first claim. Defense counsel reiterated the argument raised in the motion, adding that Mr. Marshall was never sentenced under section 948.20. The trial court found that the probation was pursuant to section 948.20 and that the offenses were nonviolent felonies that qualified Mr. Marshall for drug offender probation.
The trial court denied Mr. Marshall's first claim. It directed the clerk to "prepare an amended sentencing [document] .... [to] reflect a sentence on [c]ounts [one] and [two] of three (3) years in prison, followed by one (1) year of community control, followed by one (1) year of drug offender probation." The clerk did so.
Neither party briefed any error regarding the trial court's amendment of the length of the sentence for count two.
Discussion
Mr. Marshall reiterates his argument that he did not qualify for drug offender probation.
We review the trial court's ruling de novo. See Salter v. State, 77 So. 3d 760, 764 (Fla. 4th DCA 2011). Drug offender probation is permissible only where a defendant (1) "committed a nonviolent felony as defined in this statute" and (2) scored sixty total points or fewer on his scoresheet. Taylor v. State, 227 So. 3d 1252, 1252 (Fla. 5th DCA 2017) (citing § 948.20(1), Fla. Stat. (2014) ). A "nonviolent felony" is "a third[-]degree felony violation under chapter 810 or any other felony offense that is not a forcible felony as defined in [section] 776.08." § 948.20(1), Fla. Stat. (2018). A "forcible felony" is "any other felony which involves the use or threat of physical force or violence against any individual." § 776.08, Fla. Stat. (2018). "[T]he only relevant consideration is the statutory elements of the offense." State v. Hearns, 961 So. 2d 211, 216 (Fla. 2007).
Bribery is not a forcible felony under section 776.08 ; it does not necessarily involve the use or threat of physical force or violence against an individual. See § 838.015(1) (" 'Bribery' means to knowingly and intentionally give, offer, or promise to any public servant, or, if a public servant, to knowingly and intentionally request, solicit, accept, or agree to accept for himself or herself or another, any pecuniary or other benefit not authorized by law with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty."). Battery also is not a forcible felony because it "can be committed by simple [nonviolent] touching as well as by striking or intentionally causing bodily harm." Ellis v. State, 135 So. 3d 478, 480 (Fla. 2d DCA 2014) (citing Hearns, 961 So. 2d at 218-19 ); see also § 784.03 (providing that a person commits a third-degree felony battery where the person "has one prior conviction for battery, aggravated battery, or felony battery" and then "[a]ctually and intentionally touches or strikes another person against the will of the other" or "[i]ntentionally causes bodily harm to another person"). Accordingly, counts one and two are nonviolent felony offenses that qualify for drug offender probation. The trial court properly rejected Mr. Marshall's contrary argument. Next, Mr. Marshall argues for the first time on appeal that his 63.3 sentencing points made him ineligible for drug offender probation. See, e.g., Taylor, 227 So. 3d at 1252 ("Appellant scored 181 sentencing points on his scoresheet and was therefore ineligible to receive drug offender probation."). Mr. Marshall should have raised this specific argument in his rule 3.800(b)(2) motion to preserve it for our review. See Jackson v. State, 983 So. 2d 562, 571 (Fla. 2008) ("[W]e adopted rule 9.140(d), Florida Rules of Appellate Procedure (now rule 9.140(e) ), requiring that sentencing errors be preserved either through a contemporaneous objection or by motion under rule 3.800(b)."); Gordon v. State, 139 So. 3d 958, 960 (Fla. 2d DCA 2014) ("[F]or sentencing errors, to raise even fundamental error on appeal, defendants must first file a motion under rule 3.800(b)." (quoting Jackson, 983 So. 2d at 569 )); see, e.g., Fortner v. State, 23 So. 3d 1275, 1276-77 (Fla. 2d DCA 2010) (holding that the illegal sentence of drug offender probation was a sentencing error that appellate counsel should have "preserved for appeal under rule 3.800(b)(2)"); Reager v. State, 283 So. 3d 951, 952 (Fla. 1st DCA 2019) (declining to review an argument regarding a sentencing error where defendant failed to include it in his rule 3.800(b) motion). Mr. Marshall did not, and we may not review it now. See Reager, 283 So. 3d at 952 ("Reager filed a Rule 3.800(b)(2) motion, but failed to include the argument he now makes, so we may not review it. Reager's remedy, if any, must be by postconviction claim.").
Affirmed.
LUCAS and STARGEL, JJ., Concur.