Opinion
No. 4D07-3127.
March 18, 2009.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 312006CF001899A.
Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
Tamara Ortiz, following a jury trial, appeals her conviction and sentences for organized fraud less than $20,000 and driving while license revoked. Ortiz raises two points on appeal: (1) that the trial court erred in denying her requests to retain private counsel and (2) that her habitual felony offender sentences must be reversed for resentencing as the trial court did not obtain and consider a presentence investigation (PSI).
We affirm as to the trial court's denial of Ortiz's requests to discharge appointed counsel and hire private counsel. The facts of this case are directly on point with this court's decision in Evans v. State, 741 So. 2d 1190 (Fla. 4th DCA 1999). The trial court in the instant case found that Ortiz's requests, after the jury had been selected and sworn, were invoked to delay the proceedings. We find the trial court did not abuse its discretion in denying Ortiz's requests.
The second issue involves the application of section 775.084(3)(a)1., Florida Statutes (2007), which requires, unless waived, a presentence investigation prior to determining whether a defendant is a habitual felony offender. Section 775.084(3)(a)1., provides:
(3)(a) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender.
It is clear from a plain reading of the statute that, unless waived, the PSI is mandatory. The record reflects that Ortiz's attorney waived the PSI requirement. Ortiz argues that her attorney's waiver of the PSI requirement was done without her consent as she was not consulted.
In Likely v. State, 583 So. 2d 414, 414-15 (Fla. 1st DCA 1991), the First District court held that:
[A] defendant's knowing waiver of the procedural rights accorded b y § 775.084, the habitual offender statute, precludes any relief from the trial court's failure to strictly follow the statute. In the instant case, appellant knowingly waived the PSI requirement and agreed to be sentenced as a habitual offender. The transcript clearly shows that the plea was discussed with appellant; that the trial court said he considered the proposed plea agreement as a waiver of the PSI; that defense counsel discussed the court's interpretation with appellant; and that appellant waived the procedural requirements and agreed to be sentenced as a habitual felony offender.
Id. at 414-15.
In Jones v. State, 643 So. 2d 1150 (Fla. 3d DCA 1994), the defendant filed a 3.850 motion in which he asserted inter alia that he was denied his right to a PSI. The defendant's motion was summarily denied because:
[T]he transcript demonstrates that defendant knowingly and intelligently waived his right to a presentence investigation. The trial court specifically asked defendant whether he would waive his right to a PSI. Prior to waiving the PSI defendant asked the court to explain to him the purpose of a PSI and whether or not waiving the PSI would affect his sentence. Upon explanation, defendant stated that he would waive his right to a PSI. Thus the transcript demonstrates that defendant has waived his right to a presentence investigation.
Id. at 1151.
The transcript of the sentencing hearing in this case fails to reflect that Ortiz's counsel consulted with her prior to waiving the PSI, and there is no discussion by the trial court or inquiry of Ortiz of her knowing and voluntary waiver of the PSI. Absent a clear indication on the record that Ortiz knowingly and voluntarily waived the PSI requirement, we reverse and remand to the trial court to review the PSI and thereafter resentence Ortiz accordingly.
The two colloquies where the PSI was discussed were held on (1) May 23, 2007, after the verdict was read, and (2) on July 23, 2007, at sentencing:
(1) May 23, 2007
THE COURT: All right. The record should reflect the jury's been excused. Let's see, is there a PSI requirement, Mr. Dodd? Do you know?
MR. DODD [prosecutor]: Your Honor, (inaudible) I would like while we're on the record is [sic] serve the defendant and her attorney with a notice that the State's intending to seek enhanced penalties under the habitual felony offender statute.
THE COURT: Okay. Then once that's served, the State seeks to have enhanced penalties imposed, a PSI is required by statute unless you all wish to waive that.
MR. HETHERINGTON [defense counsel]: Judge, you know, I'm not sure we can. I don't know if we can or can't. You know, it's just that I hate to get in a position down the road where it comes back just based on that.
THE COURT: Well, I'm not asking you too [sic]. You can, I'll show you the authority.
MR. HETHERINGTON: Okay. Then we will waive.
MR. DODD: The State would waive as well, your Honor.
THE COURT: Okay.
(2) July 23, 2007
THE COURT: Now, as I recall, I may be wrong, both the State and the Defense and Ms. Ortiz had waived a presentence investigation.
MR. ABARE: I didn't handle the trial in this case, Judge. I —
THE COURT: Okay. If she hadn't, I'll, I'll get one, but —
MR. ABARE: I would waive, I would waive it anyway so —
THE COURT: All right. Well, let me make sure —
MR. ABARE: — (inaudible) —
THE COURT: All right. Let —
MR. ABARE:— (inaudible).
MR. DODD: And I believe but I'll check my file, though.
THE COURT: Okay. Well, let's —
MR. ABARE: I don't think there's anything that's going to —
THE COURT: I want to hold off on doing all this before I determine that. Can you all see if it was waived?
THE CLERK: On 5/23.
THE COURT: Okay.
MR. ABARE: I was not here at that time, Judge, but —
THE COURT: I think it was Mr. —
MR. ABARE:— I believe that it would be waived. Mr. Hetherington handled the trial in the case.
Affirmed in Part; Reversed in Part, and Remanded.
POLEN, J., concurs.
WARNER, J., dissents with opinion.
I must respectfully dissent from the portion of the majority opinion which reverses Ortiz's sentence because the record does not show a personal waiver of her statutory right to a presentence investigation report. Since Ortiz's attorney waived her right to a presentence investigation, I would affirm. Failure to obtain an on — the — record personal waiver of the right to a PSI is not required under current supreme court precedent, and it does not constitute fundamental error.
In State v. Griffith, 561 So. 2d 528 (Fla. 1991), the supreme court held that the waiver of a non — fundamental right requires no personal on — the — record waiver. There, a defense attorney waived a defendant's right to a twelve — person jury in a death penalty case. Because the right waived was not a fundamental one (as opposed to the right to a jury trial itself), an on — the — record showing of a defendant's personal knowing and intelligent waiver of that right was not required. Thus, defense counsel's on — the — record waiver of the defendant's right was sufficient.
Griffith considered the waiver of the twelve — person jury a tactical decision on the part of defense counsel for which a court is not required to obtain the personal waiver of a right. It referred to its prior holding in State v. Singletary, 549 So. 2d 996, 997 (Fla. 1989):
It is impractical and unnecessary to require an on — the — record waiver by the defendant to anything but those rights which go to the very heart of the adjudicatory process, such as the right to a lawyer, or the right to a jury trial. Fla.R.Crim.P. 3.260.
Id. at 530 (citation omitted).
The right to a PSI is not a fundamental, constitutional right, nor does it go to the heart of the adjudicatory process. It is a statutory right involving sentencing. In this case, defense counsel waived the PSI not only once but twice. It was discussed by the court, the state attorney, and Ortiz's public defender in her presence. As in Griffith, she "should not now be heard to complain." Id.
The two cases cited by the majority simply do not stand for the proposition that failure to obtain an on — the — record waiver of the right to a PSI by the defendant may be raised for the first time on appeal. Both Likely v. State, 583 So. 2d 414 (Fla. 1st DCA 1991), and Jones v. State, 643 So. 2d 1150 (Fla. 3d DCA 1994), involved appeals from orders denying postconviction relief. In each the court held that the motion alleging the trial court's failure to obtain a PSI prior to sentencing could be summarily denied, because each defendant personally waived the right to a PSI during their respective plea colloquies. Neither case held that the failure to obtain a personal waiver constituted a fundamental error remediable o n direct appeal. The fact that the defendants personally waived the PSI at their respective plea colloquies simply permitted the court to summarily deny the motion.
I would affirm on both issues raised by the appellant.
Not final until disposition of timely filed motion for rehearing.