Preserving an Unpronounced Sentencing Fee Under Rule 3.800(b)(2)
Defendant pleads no contest to felony battery and is sentenced to 36 months in prison. At the sentencing hearing, the judge orally pronounces the prison term and $200 in court costs, but does not mention a $500 public defender lien or a $100 crime prevention fund fee. The written judgment and sentence, entered the same day, includes both additional amounts. Defense counsel did not object at the hearing and did not file a motion to correct sentencing error. Defendant timely files a notice of appeal. Appellate counsel reviews the record and sees the discrepancy. The state argues that any sentencing error was not preserved and that the additional fees are clerical. Appellate counsel is considering filing a motion under Florida Rule of Criminal Procedure 3.800(b)(2) in the trial court while the appeal is pending. The deadline for the initial brief is in 40 days.
1. Explain whether the sentencing error is preserved for appeal and what rule 3.800(b)(2) requires.
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Florida law requires sentencing errors to be preserved for appellate review. A defendant must either object at the sentencing hearing or file a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b). Rule 3.800(b)(2) permits a party to file such a motion in the trial court within 60 days after the notice of appeal is filed. The motion tolls the appeal and gives the trial court the first opportunity to correct the error. If counsel does nothing, the appellate court generally will not review the unpreserved sentencing error, except for an illegal sentence that can be raised under rule 3.800(a). The discrepancy between the oral pronouncement and the written judgment is a classic preservation problem. Because the notice of appeal is already filed and the initial brief is not due for 40 days, counsel should promptly file the 3.800(b)(2) motion; waiting until the brief is filed may waive the issue.
2. What arguments support the motion, and what remedy should counsel seek?
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The motion should argue that the oral pronouncement is the sentence and that the written judgment cannot add punitive or discretionary amounts that were not pronounced. The $500 public defender lien and the $100 crime prevention fee should be stricken unless the trial court orally imposed them or they are mandatory costs that do not require oral pronouncement. Counsel should distinguish mandatory costs from discretionary costs and request a corrected written judgment. If the trial court finds the fees were mandatory, counsel should at least request a remand for a proper oral pronouncement and an opportunity to be heard on the public defender lien. The motion should be specific, cite the sentencing transcript, and attach the relevant pages. The remedy is correction of the written sentence, not a new sentencing hearing, unless the error affected the sentence.
3. If the trial court denies the motion, how does that affect the appeal, and what standard of review applies?
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If the trial court denies the motion, the denial is reviewed on appeal together with the judgment. The appellate court will review the legal question of whether the written sentence conforms to the oral pronouncement de novo, while deferring to the trial court's factual findings. If the trial court grants the motion, the appeal may become moot as to that issue, and counsel should consider dismissing or narrowing the appeal. The 3.800(b)(2) motion also preserves the issue for the appellate court; if counsel fails to file it, the state may argue waiver. The appellate court can remand with directions to strike the unauthorized costs. Counsel should calendar the 60-day deadline and the initial brief deadline, because the motion tolls the appeal but does not eliminate the need to monitor the schedule.