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Rosier v. State

Florida Court of Appeals, First District

June 28, 2019

Roger N. Rosier, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Wakulla County. Dawn Caloca-Johnson, Judge.

          Melissa Joy Ford, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.

          Ashley Moody, Attorney General; Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals; Samuel B. Steinberg and Steven E. Woods, Assistant Attorneys General, Tallahassee, for Appellee.

          ON MOTION FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION

          Rowe, J.

         Roger N. Rosier's judgment and sentence were reversed by a panel of this Court on grounds that the competency hearing conducted by the trial court was legally inadequate. See Rosier v. State, 43 Fla.L.Weekly D2042 (Fla. 1st DCA Sept. 5, 2018). The State moved for rehearing, rehearing en banc, and clarification, asserting that the Court sua sponte decided an issue not argued by Rosier. We grant the motion, withdraw the panel opinion, and substitute the following in its place.

         I.

         Rosier appeals his conviction and sentence for resisting an officer with violence. He argues that the trial court erred by: (1) imposing a discretionary fine and surcharge without orally pronouncing them, and (2) failing to conduct a competency hearing.

         We agree that the trial court erred when it imposed the discretionary fine and surcharge under section 775.083, Florida Statutes, without orally pronouncing them at sentencing. Thus, the fine and surcharge must be stricken. We affirm Rosier's judgment and sentence in all other respects.

         Rosier made only one argument related to competency in his initial brief-that the trial court erred as a matter of law by failing to conduct a competency hearing. Rosier's specific argument was:

Mr. Rosier was committed to the Florida State Hospital after the trial court found that he was incompetent to proceed on October 7, 2013. After receiving a report recommending a finding of competency, the trial court scheduled the hearing required by Florida Rule of Criminal Procedure 3.212(c) for July 9, 2014; however, the required hearing never occurred. Subsequently, on August 14, 2014, a different circuit court judge entered an order finding that Mr. Rosier was competent. The controlling rules and case law cited above provide that a competency hearing is required in this context. The trial court erred as a matter of law by adjudging Mr. Rosier- who had previously been adjudged incompetent- competent without first holding a hearing.

         Weeks after the initial brief was filed, the State sought and was granted leave to supplement the record with the transcript of the competency hearing conducted on August 14, 2014. After being served with a transcript contradicting his claim that no competency hearing occurred, Rosier did not seek to amend the initial brief to clarify or supplement his arguments on appeal.

         The State then filed an answer brief, arguing that the transcript of the competency hearing, the expert's report, and the trial court's order refuted Rosier's argument that the trial court failed to conduct a competency hearing. The State contended that the record showed,

the trial court made an independent determination that Rosier was competent and fully complied with the requirements expressed in Dougherty v. State, 149 So.3d 672 (Fla. 2014), and Merriell v. State, 169 So.3d 1287 (Fla. 1st DCA 2015)[, ] by holding a hearing, making an independent determination that Appellant was competent to proceed, and entering a written order.

         Rosier did not respond to the State's arguments. Rather than file a reply brief, he filed a "Notice that Appellant Will Not File a Reply Brief."

         After briefing, this Court delivered an opinion reversing Rosier's judgment and sentence. The panel majority cast Rosier's argument on appeal as one "challeng[ing] the adequacy of the hearing at which it was determined that his competency had been restored." Rosier, 43 Fla.L.Weekly at D2042. Holding that the competency hearing was inadequate, the majority reversed and remanded for the trial court to make a nunc pro tunc evaluation of Rosier's competency.

         II.

         On rehearing, the State points out that the only argument presented in Rosier's initial brief was that the trial court entered an order finding Rosier competent to proceed without conducting a competency hearing. The State argues that Rosier did not challenge the adequacy of the hearing. Thus, the issue was waived, and the panel majority erred by sua sponte raising and deciding the issue. In his response to the rehearing motion, Rosier acknowledged that he failed to raise the adequacy of the hearing in the initial brief but argued that the issue was properly before the Court because the State raised it in the answer brief, and Rosier's initial-brief argument-that the trial court failed to hold a competency hearing-necessarily included an argument that the hearing was inadequate. We disagree and hold that Rosier waived any argument on the adequacy of the competency hearing when he failed to raise the issue in the initial brief.

         An appellate court is "not at liberty to address issues that were not raised by the parties." Anheuser-Busch Co., Inc. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013). Nor may an appellate court "depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention." Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983) (on motion for rehearing); see also D.H. v. Adept Cmty. Servs., Inc., 43 Fla.L.Weekly S533, S539 (Fla. Nov. 1, 2018) (Canady, C.J., dissenting) ("[I]t is not the role of the appellate court to act as standby counsel for the parties."). Instead, an appellate court must confine its decision to the issues raised in the briefs. See Bainter v. League of Women Voters of Fla., 150 So.3d 1115, 1126 (Fla. 2014) ("Basic principles of due process"-to say nothing of professionalism and a long appellate tradition-"suggest that courts should not consider issues raised for the first time at oral argument" and "ought not consider arguments outside the scope of the briefing process.") (quoting Powell v. State, 120 So.3d 577, 591 (Fla. 1st DCA 2013))); Redditt v. State, 84 So.2d 317, 320 (1955) ("The function of an assignment of error is to point [to] the specific error claimed to have been committed by the court below, in order that the reviewing court and opposing counsel may see on what point the appellant seeks reversal and to limit argument and review to such point."); T.M.H. v. D.M.T., 79 So.3d 787, 827 (Fla. 5th DCA 2011) (Lawson, J., dissenting) ("Judicial restraint serves as the essential self-imposed 'check' against the judicial branch's abuse of power. . . ."). For an appellant to raise an issue properly on appeal, he must raise it in the initial brief. Otherwise, issues not raised in the initial brief are considered waived or abandoned.[1]See Hall v. State, 823 So.2d 757, 763 (Fla. 2002) (finding procedurally barred argument made in appellant's reply brief that was not raised in the initial brief), abrogated on other grounds by Norvil v. State, 191 So.3d 406 (Fla. 2016); City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla. 1959) ("An assigned error will be deemed to have been abandoned when it is completely omitted from the briefs."); J.A.B. Enter. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) ("[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief."); Philip J. Padovano, Waiver, 2 Fla. Prac., App. Practice § 8:10 (2017 ed.) ("Failure to pursue the argument on appeal or review is a waiver of the point.").

         These fundamental principles of appellate review and judicial restraint apply even when the defendant has been convicted of a capital crime and sentenced to death. See Hoskins v. State, 75 So.3d 250, 257 (Fla. 2011) (declining to address a claim of ineffective assistance of counsel because appellant raised the claim for the first time in the reply brief); Simmons v. State, 934 So.2d 1100, 1117 n.14 (Fla. 2006) (declining to reach on direct appeal "any arguments not expressly included in Simmons' brief to this Court"); Coolen v. State, 696 So.2d 738, 742 n.2 (Fla. 1997) (finding waived on direct appeal a claim of improper admission of the defendant's statements made during a taped interview because the defendant failed to brief fully and argue the issue); Johnson v. State, 660 So.2d 637, 645 (Fla. 1995) (reiterating on direct appeal that "[t]he law is well settled that failure to raise an available issue constitutes an admission that no error occurred"); Duest v. Dugger, 555 So.2d 849, 851-52 (Fla. 1990) (finding waived in a postconviction appeal any claims not fully argued in the appellant's initial brief).

         Applying these principles here, we find Rosier waived any argument that the competency hearing was inadequate. Williams v. State, 932 So.2d 1233, 1237 (Fla. 1st DCA 2006) (defining waiver as the "voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right"). In his initial brief, Rosier argued only that the trial court failed to hold a competency hearing. Now on rehearing, he argues, for the first time, that the hearing was inadequate. Because Rosier did not challenge the adequacy of the competency hearing in his initial brief, he may not raise it now on rehearing. Coolen, 696 So.2d at 742 n.2; Anheuser-Busch, 125 So.3d at 312.

         Rosier offers two reasons why his failure to brief the adequacy of the hearing does not bar this Court from reviewing the issue. First, he asserts that the issue was properly before the Court because the State implicitly raised the issue in the answer brief by arguing that the trial court made an independent determination of Rosier's competency. Second, Rosier argues that "[a] finding of competency following an inadequate hearing is essentially the same error as a finding of competency following no hearing at all."

         We reject both arguments. First, the State's arguments in the answer brief assigned no new error for this Court to review. Even after Rosier received the supplemental record refuting his only argument on competency, Rosier did not seek leave to file an amended brief. See In re J.W., 210 So.3d 147, 152 (Fla. 2d DCA 2016) (holding that appellant waived issue not argued in her initial brief after she was put on notice of the issue in the answer brief and "did not move for leave to file an amended brief to address the point"); Bilotti v. State, 27 So.3d 798, 800 (Fla. 2d DCA 2010) (holding that appellant waived issue because he did not raise it in the initial brief, seek leave to file a supplemental brief, or reply to the State's answer brief).

         Second, Rosier's initial argument challenging the trial court's failure to hold a competency hearing was insufficient to preserve his argument on rehearing challenging the adequacy of the hearing. I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007) (recognizing that an appellate court may "ordinarily reverse only on the basis of the specific arguments presented by the appellant"). Even when confronted with the transcript of the hearing, Rosier did not file a reply brief to respond to the arguments in the answer brief and to clarify the argument made in his initial brief. We decline the invitation to expand Rosier's lack-of-hearing argument to incorporate his newly articulated inadequate-hearing argument. See Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 278 (Fla. 1st DCA 2012) (explaining that Florida Rule of Appellate Procedure 9.330(a) expressly prohibits consideration of issues raised for the first time in a motion for rehearing).

         III.

         We thus confine our review to the argument Rosier raised in the initial brief-whether the trial court failed to conduct a competency hearing. Had there been such a failure here, precedent from this Court would indeed support reversal. See Pearce v. State, 250 So.3d 791, 792-93 (Fla. 1st DCA 2018); Robinson v. State, 250 So.3d 777, 778-79 (Fla. 1st DCA 2018); Francis v. State, 248 So.3d 263, 264-65 (Fla. 1st DCA 2018). But reversal is not required here because the record clearly shows that the trial court did conduct a hearing on Rosier's competency.

         Rosier was committed to the Florida State Hospital after the trial court determined that he was incompetent to proceed on October 7, 2013. On June 27, 2014, the trial court received a copy of the confidential evaluation report from the experts at Florida State Hospital. The report found Rosier competent to proceed. The report also included discharge instructions suggesting that jail officials continue Rosier's medication regime while Rosier awaited trial. The case progress docket then reflects that a review hearing was scheduled for August 13, 2014, with Judge Caloca-Johnson presiding.

         At the review hearing, defense counsel alerted the court that Rosier was returning from Florida State Hospital and that a competency hearing should be scheduled. Defense counsel asked that the hearing occur before the case was set for trial. When the prosecutor suggested resolving the issue that day, defense counsel stated that Rosier was not present and asked for the competency hearing to be set for the next day, August 14, 2014. The following discussion occurred:

THE COURT: Yeah. So we've moved to[o] much around, in the last twenty-four hours.
THE CLERK: How long is it going to take?
THE COURT: How long is it going to take, two seconds?
MS. JOHNSON: Judge, it won't - - it won't take more than - - more than thirty seconds.
THE COURT: Okay.
MS. JOHNSON: We're stipulating that he's competent.

         The record reflects that the court reconvened the next day for a competency hearing.

         At that hearing, defense counsel and Rosier stipulated to the expert report's findings that Rosier was competent to proceed. The trial court then conducted a colloquy of Rosier, during which the court learned that Rosier believed that he was doing "a lot better," that he was not taking any psychotropic medications, and that he believed he was okay. The trial court's written order, entered on the same day as the hearing, provided:

THIS CAUSE having come before the Court on the report of Leslie Dellenbarger, Psy.D. Senior Psychologist, Florida State Hospital of June 19, 2014, that the Defendant is competent to proceed, and the Court being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1. The Defendant is currently competent to proceed to trial.

         These facts refute Rosier's argument that the trial court failed to hold a hearing before entering the order finding him competent to proceed. See Merriell, 169 So.3d at 1288 (affirming a finding of competency made during a status hearing when the court specifically stated that it had read the competency evaluations and that it found the appellant competent to proceed). Because the record shows that the trial court conducted a hearing to determine competence, Rosier's sole argument on appeal fails. Apart from our reversal of his sentence to address the imposition of the fine and surcharge, Rosier's judgment and sentence is Affirmed in part, Reversed in part, and Remanded for further proceedings.

          B.L. Thomas, C.J., and Lewis, Roberts, Wetherell, Ray, Osterhaus, Kelsey, Winokur, Jay, and MK Thomas, JJ., concur.

          Wolf, J., concurs in result with opinion.

          Winokur, J., concurs in an opinion joined by B.L. Thomas, C.J.

          M.K. Thomas, J., concurs in an opinion joined by B.L. Thomas, C.J., and Kelsey and Jay, JJ.

          Makar, J., dissents in an opinion joined by Bilbrey, J.

          Bilbrey, J., dissents in an opinion joined by Makar, J.

          Wolf, J., concurring in result.

         I concur in affirming the trial court's determination regarding competency. Any alleged error in this case was not sufficiently egregious to warrant this court reversing on an issue not raised within appellant's brief.

         If an error in this case, however, had been discovered by this court during its normal review process that affected the fundamental fairness of the criminal proceeding, we would be required to order supplemental briefing and address the error.[2]Not addressing an error that goes to the very fairness of a criminal proceeding is simply not an option. I fully agree with the thoughts expressed by Judge Cohen in his well-reasoned concurrence in Berben v. State, 44 Fla.L.Weekly D962, 963 (Fla. 5th DCA Apr. 12, 2019), where he stated:

While the dissent correctly asserts that we have no duty to undertake a fundamental error analysis, we do, however, have a duty to ensure that justice is applied fairly and evenly. E.g., Smith v. State, 521 So.2d 106, 108 (Fla. 1988) (explaining that fundamental error should apply "where the interests of justice present a compelling demand for its application" (citing Ray v. State, 403 So.2d 956 (Fla. 1981)). It is also a well-established practice of this Court to remedy fundamental errors on the face of the record. E.g., Honaker v. State, 199 So.3d 1068, 1070 (Fla. 5th DCA 2016); Johnson v. State, 574 So.2d 222, 224 (Fla. 5th DCA 1991); Goss v. State, 398 So.2d 998, 999 (Fla. 5th DCA 1981). I agree that a finding of reversible error that was neither preserved at the trial level nor argued on appeal should be a rare circumstance; this is that rare case. We cannot simply ignore the fundamental sentencing error under the guise of "judicial restraint."

(Footnote omitted).

         The same can be said of non-sentencing errors that go to the very ...


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