Opinion
No. 3D17-133
07-10-2019
David STAPLES, Appellant, v. The STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
Before FERNANDEZ, LOGUE and MILLER, JJ.
FERNANDEZ, J.
Petitioner David Staples appeals his judgment and sentence. We agree with the State and affirm.
On July 22, 2008, Staples entered a nolo contendere plea to the following charges: (1) robbery using a deadly weapon or firearm and armed carjacking, (2) robbery using a deadly weapon or firearm and attempted kidnapping with a weapon, and (3) robbery using a deadly weapon or firearm. The trial court withheld adjudication and sentenced Staples as a youthful offender to two years community control, followed by four years probation, with the special condition that he serve 364 days in county jail, mitigated by boot camp.
On January 12, 2010, the State filed an affidavit of violation of probation in each case alleging that Staples violated his probation by committing the crime of leaving the scene of an accident with property damage. On September 9, 2011, the trial court modified Staples' probation by removing the boot camp provision and extending the term of probation by four years, so it would end on September 9, 2015.
On August 22, 2012, the State filed an amended affidavit of violation of probation alleging that Staples violated his probation by committing the criminal offenses of having no driver's license and failing to pay for drug testing fees. On December 31, 2014, the State filed another amended affidavit of violation of probation alleging that Staples violated his probation by committing the criminal offenses of battery and domestic battery by strangulation. On January 8, 2015, the State charged Staples with robbery by sudden snatching, battery, domestic battery by strangulation, and false imprisonment.
At a hearing on September 3, 2015, Staples admitted he violated his probation and entered a nolo contendere plea. The trial court revoked his probation and sentenced him to 18.1 years in state prison with credit for time served from December 19, 2014.
Thereafter, this Court entered an order granting Staples' petition for belated appeal on January 5, 2017. On February 28, 2017, while this appeal was pending and before the Public Defender's Office was appointed in this case, Staples filed a pro se motion to correct sentencing errors alleging three claims: (1) that the trial court lacked subject-matter jurisdiction to revoke his probation, (2) that the trial court erred in failing to continue his youthful offender status, and (3) that the trial court erred in designating him a violent felony offender of special concern.
The State filed a response to Staples' February 28, 2017 motion, contending that the motion was "facially insufficient under Florida Rule of Criminal Procedure 3.800(a)," because it failed to "affirmatively identify court records which, on their face, demonstrate the existence of an illegal sentence." On September 12, 2018, the trial court denied Staples' motion, stating that Staples' motion was "facially insufficient under Florida Rule of Criminal Procedure 3.800(a)." The order further stated that "[t]he defendant fails to affirmatively identify court records which, on their face, demonstrate the existence of an illegal sentence. See Johnson v. State, 60 So. 3d 1045 (Fla. 2011)." Staples now appeals.
Staples argues that the trial court erred in denying his motion as facially insufficient under rule 3.800(a) because his motion was not filed pursuant to rule 3.800(a), but instead was filed pursuant to rule 3.800(b)(2), which does not require the movant to affirmatively allege that the court records demonstrate on their face an entitlement to the relief sought. Staples contends that this Court should reverse and remand his case to the trial court with instructions that the court consider the merits of Staples' motion.
We find that although the trial court erred in treating Staples' motion as a rule 3.800(a) motion rather than a rule 3.800(b) motion, the trial court's order is a nullity. "Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B), if a trial court does not rule on a motion to correct a sentencing error filed while an appeal is pending within sixty days, the motion shall be deemed denied." Sirmons v. State, 264 So. 3d 958, 959 (Fla. 4th DCA 2019). "Once the sixty days has passed, an order purporting to resentence a defendant is entered without jurisdiction and is a nullity." Id.
Here, Staples' motion was filed on February 28, 2017. The trial court's order on the motion was entered on September 12, 2018, thus the order is not valid under rule 3.800(b)(2)(B). State v. Hodges, 151 So. 3d 531, 534 (Fla. 3d DCA 2014) (holding that when a trial court enters an order on a motion to correct sentencing error pending appeal outside of the time permitted for the ruling on such a motion, the order is deemed a nullity and must be stricken).
In addition, two of the three alleged errors Staples outlines in his motion cannot be properly reviewed under rule 3.800(b). Staples contends that the trial court lacked jurisdiction to revoke his probation and that the trial court erred in failing to continue his youthful offender status. These are sentencing process errors, which cannot be properly reviewed under rule 3.800(b)(2). "That rule is not used to address errors in the sentencing process, but errors in an order entered as a result of the sentencing process." Delancy v. State, 256 So. 3d 940, 946 (Fla. 4th DCA 2018) ; Jackson v. State, 983 So. 2d 562, 572-74 (Fla. 2008) (holding a defendant improperly files a rule 3.800(b) motion if his or her claim deals with an error in the sentencing process, rather than the sentencing order; if he or she does so, this Court applies "the general rule that an unpreserved error may be considered on appeal only if the error is fundamental"). Thus, this Court can only review these errors under the fundamental error standard. Jackson, 983 So. 2d at 566.
First, Staples alleges that the trial court lacked jurisdiction to revoke his probation because he had already served in excess of the six years allowed by the applicable youthful offender statute. However, under Eustache v. State, 248 So. 3d 1097, 1102 (Fla. 2018), "when a youthful offender commits a substantive violation of probation and the trial court elects to impose a sentence in excess of the six-year cap, the sentence necessarily becomes an adult...sentence such that the defendant does not retain his or her ‘youthful offender status.’ " As previously stated, Staples' violations of probation resulted in the trial court modifying Staples' probation on September 9, 2011 by removing the boot camp provision and extending the term of probation by four years. This sentence was in excess of the six-year cap, which was an adult sentence, so Staples lost his youthful offender status. In addition, after his first violation of probation and resulting September 9, 2011 adult sentencing, Staples violated his probation again. On August 22, 2012, the state filed an amended affidavit of violation of probation. On December 31, 2014, another affidavit of violation was filed alleging that Staples violated his probation and on January 8, 2015, the State charged Staples with robbery by sudden snatching, battery, domestic battery by strangulation, and false imprisonment. On September 3, 2015, Staples admitted the violation of probation and entered a nolo contender plea in the new case. The trial court revoked Staples' probation and sentenced him to 18.1 years in state prison with credit for time served from December 19, 2014. The trial court had jurisdiction to revoke Staples' probation in September 2015, because the court chose to impose an adult sentence at the time of Staples' first probation violation, which removed Staples' youthful offender status.
Second, Staples' alleges that the trial court erred in failing to continue his youthful offender status. In Granger v. State, 252 So. 3d 769, 769 (Fla. 4th DCA 2018), the Fourth District Court of Appeal stated, "[t]he Florida Supreme Court ... held that ‘when a youthful offender commits a substantive violation of probation and the trial court elects to impose a sentence in excess of the six-year cap, the sentence necessarily becomes an adult [Criminal Punishment Code] sentence such that the defendant does not retain his or her "youthful offender status." ’ " (quoting Eustache, 248 So. 3d at 1102 ). Thus, this claim also fails, as a defendant is not entitled to retain his youthful offender status after his violation of probation and adult sentencing. Kendall v. State, 262 So. 3d 824, 825 (Fla. 4th DCA 2019).
Finally, Staples argues that the trial court erred in allowing his designation as a violent felony offender of special concern to continue because he never had a danger hearing or the qualifying offenses for this designation. However, a review of the record demonstrates Staples was not designated a violent felony offender of special concern (VFOSC) but was designated a habitual violent offender (HVO). The sentencing order and the sentencing hearing transcript support this conclusion. The 2015 sentencing hearing reveals that Staples understood that because he had the requisite qualifying offenses, he was being designated as a HVO and not a VFOSC.
We therefore affirm Staples' revocation of probation and the resulting judgments and sentences. In addition, the trial court's order denying Staples' rule 3.800(b) motion is stricken as a nullity.
Affirmed.