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Hamiter v. State

Florida Court of Appeals, Second District

January 15, 2020

TODD LEE HAMITER, DOC #551648, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge.

          Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, for Appellee.

          ROTHSTEIN-YOUAKIM, Judge.

         Todd Lee Hamiter seeks review of an order revoking his probation and imposing sentence after he admitted violating a condition of his probation. Following our independent review of the record pursuant to Anders v. California, 386 U.S. 738 (1967); see also In re Anders Briefs, 581 So.2d 149 (Fla. 1991), we affirm without comment the revocation of his probation. As set forth below, however, we remand for entry of a corrected order of revocation, vacate the amended judgment rendered April 25, 2019, and reverse the denial of Hamiter's motion to correct sentencing error. We also certify a question regarding what constitutes a "minor sentencing error" that can be addressed on the merits within an otherwise "no merit" Anders brief.

         I. The Anders Appeal

         Hamiter admitted that he violated condition 5 of his probation by testing positive for cocaine. The trial court accepted the admission and revoked his probation. Before sentencing, Hamiter moved to withdraw his admission, and the trial court denied the motion. On appeal, Anders counsel recommends review of this issue but asserts that he can find no meritorious argument suggesting reversible error. We agree with counsel's assessment. Because we note that the revocation order fails to specify the condition of probation that the trial court found Hamiter to have violated, however, we remand for the court to enter an amended revocation order specifying that condition. See Freeman v. State, 225 So.3d 929, 930 (Fla. 2d DCA 2017) (remanding for entry of an amended order of revocation of probation "to reflect the conditions of probation . . . that he admitted to violating").

         II. Motion to Correct Sentencing Error

         On February 13, 2019, after filing his notice of appeal, Hamiter filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B). The sole issue in that motion was the erroneous imposition of an additional $50, 000 fine and $2500 five-percent surcharge upon his sentencing for the probation violation.

         The trial court filed its order granting the motion on April 16, 2019. As defense counsel argues in the Anders brief, however, the motion had to have been resolved and the order filed no later than April 15, 2019. See Fla. R. Crim. P. 3.800(b)(2)(B) (requiring that the motion be resolved and that the order ruling on the motion be filed within sixty days).[1] We therefore find ourselves in the unhappy position of having to declare the order-and the trial court's ensuing amended judgment rendered April 25, 2019-a nullity and deeming the motion denied. See id.; De La Fuente v. State, 58 So.3d 394, 395 (Fla. 2d DCA 2011). From the limited record before us, however, we agree with the trial court that the $50, 000 fine plus $2500 surcharge was duplicative of a fine that had previously been imposed. Accordingly, we reverse the deemed denial of Hamiter's motion and remand for the trial court to (again) grant the motion and enter an amended judgment.

         III. Certified Question

         In addressing the merits of Hamiter's sentencing challenge in this context, we take the opportunity to raise the following concern. In In re Anders Briefs, 581 So.2d at 152, the Florida Supreme Court held that "minor sentencing errors" may be raised in Anders briefs:

[I]ndigents in their first appeal as of right should not lose their Anders rights simply because counsel are able to identify some relatively minor sentencing issues in "no merit" briefs. . . . Therefore, appellate courts are to follow the Anders procedure fully even when costs or other minor sentencing errors are raised in "no merit" briefs; but the Anders procedure is ...

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