DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL ANTHONY PRENTICE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3498
[February 17, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Charles A. Schwab, Judge; L.T. Case No. 56-2017-CF-
002040 A.
Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, J.
Michael Anthony Prentice (“Appellant”) appeals certain sentences and
sentencing orders entered below. We agree the trial court erred in several
ways, but with the exception of one error concerning the imposition of
costs which may require an additional hearing, all of the errors are
harmless and can be ministerially corrected without further proceedings
in the trial court. Thus, we affirm the sentences imposed but remand for
the ministerial corrections, unless the cost issue requires a further
hearing. We explain the errors and the reasoning of our disposition.
Background
Appellant was formally charged with three counts of lewd or lascivious
molestation on a victim less than 12 years of age by an offender 18 years
of age or older and two counts of attempted sexual battery on a child less
than 12 years old by a perpetrator 18 years of age or older. Appellant
entered an open plea of no contest to all charges. The plea form contained
language stating that Appellant was advised by his counsel that “both
mandatory and discretionary fees and costs may be imposed” for the
services of his attorney at the time of sentencing, listing amounts totaling
$550. The plea form further advised that Appellant had “the right to
contest the fees and costs at the time of sentencing,” and contained a
provision stating that Appellant agreed to the handwritten amounts and
waived his right to contest the stated amounts. The trial court accepted
Appellant’s plea. Appellant’s prior record consisted of one misdemeanor
driving offense.
At sentencing, Appellant requested the statutory minimum sentence:
twenty-five years in prison followed by a lifetime of probation for the
molestation counts. The State advised that section 775.082(3)(a)4.,
Florida Statutes (2016), gave the trial court the option of either a sentence
of life imprisonment or a split sentence of no less than twenty-five years
followed by a lifetime of probation. The State requested a life sentence.
Appellant was adjudicated guilty and sentenced on each molestation count
to life in prison with a twenty-five year mandatory minimum, and to thirty
years in prison on each attempted sexual battery count. In pronouncing
the life sentences on each molestation count, the trial court listed each
count and then stated, for each: “that you do spend the rest of your life in
prison. I do sentence you to life.” After separately announcing the length
of imprisonment for each molestation count, the trial court then stated:
“Each of those also have a twenty-five year minimum sentence that I’m
required to impose.”
As to the attempted sexual battery counts, neither side made a request
for a specific sentence. On both of those counts, the trial court imposed
the maximum sentence of thirty years in prison. The sentences for all five
counts are to run concurrently.
After pronouncing the sentences for each count and upon the trial
court’s request, the court clerk announced various costs and fees imposed,
including $304.50 as a transcript fee owed to the public defender in
addition to the amount listed in the plea form. The trial court then
imposed the announced fees and costs. The trial court did not tell
Appellant he had the right to contest the transcript fee and no evidence
was submitted to the trial court to support the transcript fee.
Thereafter, Appellant gave notice of appeal. During the pendency of
this appeal, Appellant filed a motion to correct sentence pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2). In the motion, Appellant
argued: (1) resentencing was required on the molestation counts because
the sentences of life in prison with a twenty-five year mandatory minimum
were not statutorily authorized; (2) the judgments for the attempted sexual
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battery counts failed to include a citation to section 774.04, Florida
Statutes; and (3) the $304.50 transcript fee to the public defender must
be stricken because it was imposed without sufficient proof and without
Appellant receiving an opportunity to be heard in order to contest the fee.
The trial court did not rule on the motion within sixty days after it was
filed; thus, it was deemed to be denied. Fla. R. Crim. P. 3.800(b)(2)(B).
Appellate Analysis
The standard of review for a motion to correct a sentencing error is de
novo. Willard v. State,
22 So. 3d 864, 864 (Fla. 4th DCA 2009) (per
curiam). Likewise, “[a]n appellate court applies a de novo standard of
review to a claim that the trial court imposed an illegal sentence.”
Claycomb v. State,
142 So. 3d 916, 917 (Fla. 4th DCA 2014) (citing State
v. Valera,
75 So. 3d 330, 331–32 (Fla. 4th DCA 2011)).
The Lewd and Lascivious Molestation Sentences
Appellant argues that his concurrent sentences to life with a twenty-
five year mandatory minimum on the molestation counts are illegal.
Appellant correctly points out that, while a violation of section 800.04(5)(b)
Florida Statutes, is a life felony, the offense is subject to a specific
sentencing statute, section 775.082(3)(a)4.a., Florida Statutes (2016).
That sentencing statute states:
Except as provided in sub-subparagraph b.,[ 1] for a life felony
committed on or after September 1, 2005, which is a violation
of s. 800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of at least 25 years’
imprisonment and not exceeding life imprisonment, followed
by probation or community control for the remainder of the
person’s natural life, as provided in s. 948.012(4).
§ 775.082(3)(a)4.a., Fla. Stat. (2016). Citing Hernandez v. State,
162 So.
3d 130, (Fla. 4th DCA 2014), Appellant correctly argues that the two
possible sentences for a life felony violation of section 800.04(5)(b) are:
“either a life sentence or a split sentence” involving at least twenty-five
1 Sub-subparagraph b. is inapplicable to Appellant because it pertains to a
second or subsequent violation of section 800.04(5)(b), see § 775.082(3)(a)4.b.,
Fla. Stat. (2016), and Appellant had no prior violations of that statute.
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years’ imprisonment followed by the remainder of the defendant’s life on
probation.
Id. at 131. We agree with Appellant that the statute does not
authorize both a life sentence and a twenty-five year mandatory minimum,
and that the twenty-five year mandatory minimum applies only where a
split sentence is imposed under section 775.082(3)(a)4.a.(II), not where a
life sentence is imposed under section 775.082(3)(a)4.a.(I). See
id.
Appellant further argues that the remedy for the illegal sentence in this
case is a de novo sentencing hearing, as that was the remedy on remand
in both Hernandez,
162 So. 3d at 131 and Leon v. State,
190 So. 3d 243,
244 (Fla. 5th DCA 2016).
As it did in Hernandez, the State in this case properly concedes that
Appellant’s life sentences for the molestation counts erroneously included
a twenty-five year mandatory minimum.
162 So. 3d at 131. However, the
State argues that the trial court’s pronouncement of sentence makes clear
that it intended to impose life sentences for the molestation counts. As
described above, the transcript reveals that for each count, the trial court
separately stated that Appellant was to “spend the rest of your life in
prison,” followed by “I do sentence you to life.” After imposing the
sentences for all three counts separately, the trial court pronounced:
“Each of those also have a twenty-five year minimum mandatory sentence
that I’m required to impose.”
Based on the words used to impose the sentences, the State contends
that, rather than remanding for de novo resentencing, the trial court
should be allowed to “hold a hearing for the limited purpose of striking the
minimum mandatory portion of the sentence it erroneously imposed.” It
is problematic that the State’s answer brief cites no legal authority to
support its requested remedy. However, we disagree with Appellant’s
assertion that a de novo resentencing is required in this case, where the
cases he relies upon do not address harmless error and the application of
the “would have imposed” standard for determining whether a de novo
sentencing hearing is required to correct a sentencing error. 2
Our review of the appellate record in this case leads us to the firm
conclusion that the trial court imposed life sentences for each molestation
count. Nothing in the record suggests the trial court had some intent to
impose a term-of-years sentence. The statements of both defense counsel
and the State before the trial court announced the sentences on the
2In addition to Hernandez and Leon, Appellant cites Santana v. State,
931 So. 2d
954 (Fla. 3d DCA 2006), and Kennedy v. State,
564 So. 2d 1127 (Fla. 1st DCA
1990).
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molestation counts clearly show that both sides agreed the trial court was
to impose either a life sentence or a term-of-years sentence. This is not a
case in which there is some ambiguity as to whether the trial court
intended a life sentence or a term-of-years sentence. Thus, we hold that
the trial court properly exercised its discretion to impose a life sentence
for each molestation count, but improperly added a mandatory minimum
sentence for each sentence. We further hold that under the applicable
“would have imposed” standard, the sentencing error was harmless. See
Sherrod v. State,
292 So. 3d 804, 805 (Fla. 4th DCA 2020) (holding that
resentencing was not required when the record clearly demonstrated that
the trial court would have imposed the same sentence despite the error
regarding the grounds for probation revocation); Butner v. State,
217 So.
3d 1162, 1164 (Fla. 2d DCA 2017) (“When it is unclear from the record
whether the trial court would have imposed the same sentence if the trial
court had known it had discretion, we must vacate the defendant’s
sentence and remand the case for resentencing.”); Muyico v. State,
50 So.
3d 1227, 1228 (Fla. 4th DCA 2011) (stating that even if the “would have
imposed” standard was applied, error in reclassifying offense for
sentencing was harmless and did not entitle defendant to a de novo
resentencing).
Here, the trial court’s intention during the oral pronouncements of the
sentences is clear: for each molestation count, the trial court
unambiguously intended to impose a life sentence. In such a situation,
we do not see the need, from a due process, double jeopardy, or any other
legal perspective, for requiring a hearing on remand. See Puzio v. State,
278 So. 3d 82, 86 (Fla. 4th DCA 2019) (explaining that where the record
shows the trial court would have imposed the same sentence, erroneous
inclusion of a mandatory minimum provision in a life sentence could be
resolved by a ministerial correction by entering a corrected written
sentence and defendant’s presence was not required). Instead, rather than
elevate form over substance, we hold that on the facts of this case, the
sufficient remedy to correct the sentencing error is for the trial court on
remand to enter a corrected written sentence for each molestation count
which removes the twenty-five year mandatory minimum provision. We
also clarify that the sentencing errors regarding the molestation counts in
this case involve removing an erroneous provision in a written sentence
that was orally pronounced at the sentencing hearing, rather than adding
a required provision that was not orally pronounced at the original
sentencing hearing. In other words, the correction of sentence as to the
molestation counts in this case can be corrected by the ministerial act of
entering correctly worded written sentences that remove the mandatory
minimum sentence provisions, and neither a hearing nor Appellant’s
presence is required to make the correction. See
id.
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The Attempted Sexual Battery Judgments
Appellant argues and the State concedes that remand is necessary to
correct a scrivener’s error in the judgments entered for the two attempted
sexual battery counts.
Counts 4 and 5 of the information charged Appellant with attempted
sexual battery in violation of section 794.011(2), Florida Statutes (2016)
(the pertinent sexual battery statute), and section 777.04, Florida Statutes
(2016) (regarding inchoate offenses). Appellant pled to both counts as
charged. However, while the written judgment for each count properly
refers to the offense as “attempted sexual battery on a child under 12 by
perpetrator 18 or older,” the judgment only cites section 794.011(2) and
fails to include a citation to section 777.04. Because the judgment should
include a citation to the attempt statute as well, we remand to correct this
scrivener’s error in the written judgments. Since correction of the written
judgment in this case is a ministerial act, neither resentencing nor
Appellant’s presence is required for this purpose. See Walker v. State,
288
So. 3d 694, 696 (Fla. 4th DCA 2019).
Public Defender Fee
Appellant argues that the trial court imposed an amount for public
defender fees or costs in excess of the amount he agreed to in the plea form
and without notice of the higher amount or notice of his right to contest
the assessment. The State concedes the error on this issue.
As a remedy, Appellant requests that we remand with directions that
the total public defender fee be reduced to $500. However, the State points
out that the case law reflects that upon remand, the trial court may either
reduce the public defender fee to the statutorily authorized amount or hold
an evidentiary hearing to provide evidence to support the fee with proper
notice to the defendant of his right to contest the amount. See Alexis v.
State,
211 So. 3d 81, 83 (Fla. 4th DCA 2017) (“[W]e reverse the public
defender lien and remand to the trial court to reduce the public defender
fee to the statutorily required $100 or to hold a hearing with proper notice
to obtain evidence in support of a public defender fee in an amount greater
than the statutory minimum.”); see also Taylor v. State,
214 So. 3d 700,
701 (Fla. 4th DCA 2017) (striking the imposed public defender fee and
remanding “for either imposition of the statutorily authorized fee or an
evidentiary hearing with notice to the defendant of his right to contest the
amount”). In reply, Appellant concedes the State is correct. We therefore
reverse the trial court’s order assessing the amount of public defender fees
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and costs and remand for the trial court to either reduce the public
defender fee to $500 3 or hold an evidentiary hearing to provide evidence to
support the public defender fees and costs assessed with proper notice to
the defendant and opportunity to contest the amount.
Conclusion
We agree with Appellant that sentencing errors occurred when the trial
court orally pronounced that it was imposing a twenty-five year mandatory
minimum sentence as part of the life sentence given for each of the three
counts charging lewd or lascivious molestation on a victim less than 12
years of age by an offender 18 years of age or older and entered a written
sentence to that effect. We also agree that sentencing errors occurred
when the trial court entered written sentences for the two counts of
attempted sexual battery without referring to section 777.04, Florida
Statutes (2016). All of those sentencing errors can be corrected by entering
corrected written sentences.
We further agree with Appellant that a sentencing error occurred when
the trial court imposed a public defender fee for transcription costs and
entered a written judgment to that effect without giving Appellant notice
of the right to object and without proof supporting the amount after a
hearing if Appellant objected. That sentencing error can be corrected
either by the ministerial act of entering a written judgment removing the
transcription cost or conducting a further hearing with the proper notice.
Except for the sentencing error regarding the transcription costs, we
affirm the life sentences imposed by the trial court as to each count of lewd
or lascivious molestation on a victim less than 12 years of age by an
offender 18 years of age or older and the thirty-year sentences for each
count of attempted sexual battery. However, we remand for the trial court
to perform the ministerial acts of entering corrected written sentences
which remove any reference to a mandatory minimum sentence in relation
to the life sentences and corrected written sentences for the attempted
sexual battery counts which specifically reference section 777.04, Florida
Statutes. We further remand for the trial court to either enter a corrected
order that removes the assessment of transcription costs incurred by court
appointed counsel or conduct an appropriate hearing with the proper
notices to support the assessment.
3 We note that the trial court also entered an order assessing the statutorily
required $50 public defender application fee. The public defender application fee
assessment was not contested on appeal.
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Affirmed but remanded for corrections as to written sentences.
WARNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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