final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Michael C. Heisey, Judge; L.T. Case Nos.
472015CF000695A, 472017CF000639A, 472017CF000640A.
Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm
Beach, for appellee.
who was charged as an adult for crimes committed when he was
a juvenile, challenges his sentence on the ground that his
pre-sentence investigation report failed to include the
recommendations from the Department of Juvenile Justice as
required by section 985.565(3), Florida Statutes (2018). We
affirm, because the issue was not preserved. Even if it was
preserved, because he was an adult at sentencing, the
omission was harmless.
was charged with lewd and lascivious battery on a child. At
the time he was seventeen, but the state attorney exercised
its discretion under section 985.557(1)(b), Florida Statutes
(2018), and filed charges against appellant as an adult.
During the pendency of the case, he was charged with two
additional grand theft offenses. He finally pled to the
charges in the spring of 2018. A PSI was prepared. At
sentencing, appellant had no objection to the information
contained in the PSI; instead, he disagreed with the
recommendation and informed the court that it appeared the
preparer did not speak to the public defender, the state
attorney, or the victim. The State asked for a twelve-year
sentence. Defense counsel argued for a youthful offender
sentence to one year in jail, followed by probation, calling
character witnesses in support. No mention was made of
juvenile sentencing. The court sentenced appellant, who was
then twenty years old, to 96.45 months Florida State Prison,
the lowest permissible sentence under the Criminal Punishment
Code, on the lewd and lascivious battery, a second-degree
felony. It also sentenced him on two grand theft charges
which arose after the battery charge. The court imposed all
sentences concurrently. Defendant appealed the sentence.
During the pendency of the appeal, he filed a Florida Rule of
Criminal Procedure 3.800(b) motion attacking his sentence for
failure of the PSI to include recommendations from the DJJ as
required by section 985.565(3)(a), Florida Statutes, which
states that "The presentence investigation report must
include a comments section prepared by the Department of
Juvenile Justice, with its recommendations as to
disposition." The State objected, contending that
appellant had waived any compliance with this provision. The
court denied the motion, prompting this appeal.
985.565(4)(a)2., Florida Statutes (2018), provides "the
court may sentence [a child] who has been transferred for
criminal prosecution pursuant to information . . . [a.] As an
adult; [b.] Under chapter 958 [as a youthful offender]; or
[c.] As a juvenile under this section." For any
sentencing, however, the court shall receive a presentence
report with recommendations from the DJJ. Section 985.565(3)
(a) At the sentencing hearing the court shall receive and
consider a presentence investigation report by the Department
of Corrections regarding the suitability of the offender for
disposition as an adult or as a juvenile. The presentence
investigation report must include a comments section prepared
by the Department of Juvenile Justice, with its
recommendations as to disposition. This report requirement
may be waived by the offender.
PSI did not include any comments from the Department of
Juvenile Justice, but he failed to object at sentencing, even
though he objected to other omissions in the PSI. To attempt
to remedy this defect, his appellate attorney filed a motion
to correct his sentence pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2). We conclude, however, that failure to
have a recommendation from the DJJ constituted an error in
the sentencing process and not an error in the sentence.
Therefore, it was not properly preserved.
Jackson v. State, 983 So.2d 562 (Fla. 2008), the
court limited the type of errors which were correctable
pursuant to rule 3.800(b). "[A] 'sentencing
error' that can be preserved under rule 3.800(b)(2) is an
error in the sentence itself-not any error that might
conceivably occur during a sentencing hearing."
Id. at 573 (citing Jackson v. State, 952
So.2d 613, 616 (Fla. 2d DCA 2007)). Rule 3.800(b) was not
intended to circumvent the rules requiring contemporaneous
objections. 983 So.2d at 573. Thus, its purpose is to correct
errors in the sentence itself, not errors in the process.
Correctable sentencing errors are harmful errors in an order
entered as a result of the sentencing process, such as when
the sentence exceeds the statutory maximum, when the
scoresheet is inaccurate, and when the court improperly
imposes a departure sentence or assesses costs. 983 So.2d at
572. In contrast, defendants have the opportunity to object
to errors that occur during the sentencing process, such as
the improper introduction of evidence. 983 So.2d at 573. Rule
3.800(b) "was never intended to allow a defendant (or
defense counsel) to sit silent in the face of a procedural
error in the sentencing process and then, if unhappy with the
result, file a motion . . . ." Id.
upon Jackson, we conclude that the omission of the
DJJ recommendation in a PSI is an error in the sentencing
process, not an error in the order imposing the sentence. The
order imposing the lowest permissible sentence under the
Criminal Punishment Code was not illegal, and no error in the
sentence has been alleged. Section 985.565(4)(a)4. provides
that any sentence imposing adult sanctions is presumed
appropriate. The lack of the DJJ recommendation can be
equated with a failure to produce evidence, which would be
part of the sentencing process. Although in Smith v.
State, 762 So.2d 929, 933 (Fla. 4th DCA 2000), we
commented that a defendant should have preserved his argument
that the PSI failed to include DJJ's recommendations as
to disposition through timely objection at sentencing or
rule 3.800(b) motion, our statement was not only dicta
but was decided well before Jackson. Therefore, it
does not control this case.
the issue were preserved, we would hold that any error in
omitting comments from DJJ would be harmless beyond a
reasonable doubt, as appellant was an adult when he was
sentenced and had thus aged out of the juvenile justice
system. See § 985.0301(5)(a), Fla. Stat.
(2018). It appears that the reason for comments from DJJ is
to provide information to the trial court on various
statutory criteria which the court must consider if it
chooses to sentence a defendant as a juvenile. For instance,
pursuant to section 985.565(1)(b), the court must consider:
"prior commitments to the Department of Juvenile
Justice, the former Department of Health and Rehabilitative
Services, the Department of Children and Families, or other
facilities or institutions . . . . [t]he prospects for
adequate protection of the public and the likelihood of
deterrence and reasonable rehabilitation of the offender if
assigned to services and facilities of the Department of
Juvenile Justice [and] . . . . [w]hether the ...