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.
Appellant, who was charged as an adult for crimes committed
when he was a juvenile, challenges his sentence on the ground
that his presentence 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
as to disposition. This report requirement may be waived by
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
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 DJJs
recommendations as ...