DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
RAFAEL A. CARRION,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D18-4289
September 16, 2022
BY ORDER OF THE COURT:
Appellant's motion for rehearing and rehearing en banc, filed
on October 6, 2021, are denied. Appellant's motions for
certification of question of great public importance to the Florida
Supreme Court, filed on January 14, 2022, and May 23, 2022, are
stricken as untimely. However, upon sua sponte consideration,
IT IS ORDERED that the prior opinion dated September 22,
2021, is withdrawn, and the attached opinion is substituted
therefor. No further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE
ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL
CLERK
2
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
RAFAEL A. CARRION,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D18-4289
September 16, 2022
Appeal from the Circuit Court for Lee County, Nicholas R.
Thompson, Judge.
Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe,
Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan S.
Tannen, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Rafael A. Carrion appeals his judgment and sentences
rendered after a jury found him guilty of second-degree murder,
aggravated manslaughter, and aggravated child abuse. We affirm
Mr. Carrion's convictions and sentences without further comment.
We write only to address Mr. Carrion's argument that his judgment
must be corrected to indicate that he was found guilty by a jury—an
error that the State concedes. Because the issue Mr. Carrion raises
was not preserved below, we affirm without prejudice to Mr. Carrion
filing an appropriate postconviction motion below.
"[A] trial court may, at any time, correct clerical errors in its
judgments." Palmer v. State,
300 So. 3d 1247, 1248 (Fla. 5th DCA
2020) (and cases cited therein). The question before us, however,
turns on whether we may grant any relief from a clerical error in the
judgment where the issue is raised for the first time on appeal.
With the express approval of the supreme court, we have
already answered that question in the negative with respect to
errors that are both unpreserved and not fundamental, explaining
that pursuant to section 924.051(3), Florida Statutes, a defendant
is foreclosed from even raising such an error for the first time on
appeal. See Thomas v. State,
725 So. 2d 1148, 1149 (Fla. 2d DCA
1998) ("Because Thomas failed to seek correction of the scrivener's
error in the trial court and because the error is not fundamental, he
is precluded from raising this issue on appeal."), approved, 763 So.
2
2d 316 (Fla. 2000).1 And if a defendant is precluded from even
raising such an error, it follows that for us to respond even by
simply noting the error, let alone remanding to allow the trial court
to take any action on it, would improperly reward noncompliance
with that dictate.2
Here, the error "was not preserved either before this appeal by
objection in the trial court or while this appeal was pending by the
filing of a motion to correct sentencing error pursuant to Florida
Rule of Criminal Procedure 3.800(b)(2)." Perkins v. State,
53 So. 3d
1141, 1141 (Fla. 2d DCA 2011); see also Del Rosario v. State,
306
So. 3d 327, 327 (Fla. 3d DCA 2020) (affirming appellant's conviction
and sentence without prejudice for appellant to file a rule 3.800(b)
1 Although the scrivener's error at issue in Thomas appeared
in a probation order, section 924.051(3) indicates that a "judgment"
and an "order" are to be treated alike. See § 924.051(3) ("An appeal
may not be taken from a judgment or order unless a prejudicial
error is alleged and is properly preserved or, if not properly
preserved, would constitute fundamental error." (emphasis added)).
2 As the special concurrence points out, nothing in the plain
language of section 924.051(3) would seem to preclude us from sua
sponte noting such an error in the course of our review of the
record on appeal and remanding for the trial court to exercise its
inherent authority to correct the error, but in light of Thomas we
are nonetheless precluded from doing so here.
3
motion to correct error in sentencing order despite State's
concession of error).3
While Mr. Carrion argues that the scrivener's error is an error
in the written judgment and, as such, does not constitute a
"sentencing" error that can be corrected by way of a rule 3.800(b)
motion, we disagree. The court commentary to rule 3.800 expressly
provides that "[a] scrivener's error in this context describes clerical
3 We acknowledge that there are cases where appellate courts
have exercised their jurisdiction to include remanding with
directions that the trial court correct a scrivener's error in a
judgment; however, it is unclear from those cases whether a rule
3.800(b) motion had been filed below. See, e.g., Devlin v. State, 224
So. 3d 803, 804 (Fla. 2d DCA 2017) (remanding for the trial court to
correct a scrivener's error in the judgment that incorrectly reflected
the defendant was convicted of the wrong offense without mention
of whether a rule 3.800(b) motion was filed); Willingham v. State,
48
So. 3d 173, 173 (Fla. 2d DCA 2010) (remanding for the trial court to
correct a written judgment that erroneously indicated the defendant
entered a no contest plea where the record revealed he was
convicted after a jury trial); Taylor v. State,
242 So. 3d 1203, 1204
(Fla. 5th DCA 2018) (remanding to the trial court to correct a
scrivener's error in the judgment, which failed to indicate the
defendant was tried and found guilty by a jury); Bartee v. State,
741
So. 2d 644, 645 (Fla. 4th DCA 1999) (affirming the conviction and
sentence but remanding for the trial court to enter a corrected
judgment reflecting that the defendant was tried by a jury rather
than that he "entered a plea of nolo contendere"). However, we
distinguish those cases from the case before us where Mr. Carrion
concedes that he has not filed a rule 3.800(b) motion with the trial
court allowing the trial court the opportunity to correct the error.
4
or ministerial errors in a criminal case that occur in the written
sentence, judgment, or order of probation or restitution." Fla. R.
Crim. P. 3.800 court's commentary to 1999 amendments (emphasis
added).
The commentary then defines the term "scrivener's error" as "a
mistake in the written sentence that is at variance with the oral
pronouncement of sentence or the record but not those errors that
are the result of a judicial determination or error" and cites a series
of cases with examples of scrivener's errors falling under that
definition—including two that specifically indicated corrections
within a written judgment.
Id. (first citing Allen v. State,
739 So. 2d
166 (Fla. 3d DCA 1999) (remanding for the correction of a
"scrivener's error" in the written order that adjudicated the
appellant in contempt for "jailing polygraph exam" where the record
revealed appellant was held in contempt for her failure to testify for
the state pursuant to a trial subpoena); then citing Florczak v.
State,
712 So. 2d 467, 467 (Fla. 4th DCA 1998) (remanding for
correction of a "scrivener's error" where the appellant was acquitted
of grand theft but the written judgment stated otherwise)); see also
Ashley v. State,
850 So. 2d 1265, 1268 n.3 (Fla. 2003) (referencing
5
rule 3.800(b) and explaining "we have defined scrivener's error as
those 'clerical or ministerial errors in a criminal case that occur in
the written sentence, judgment, or order of probation or
restitution' " (citing Amends. to Fla. R. of Crim. P. 3.111(e) & 3.800 &
Fla. R. App. P. 9.020(h), 9.140, & 9.600,
761 So. 2d 1015, 1023 (Fla.
1999))).
The bottom line is that Mr. Carrion failed to preserve for
appellate review his challenge to the scrivener's error in the written
judgment, and he does not argue that the error is fundamental.
Even if Mr. Carrion is correct that rule 3.800(b) does not afford him
an opportunity to preserve such a challenge, this alone does not
allow us to ignore the statute.
Accordingly, we affirm Mr. Carrion's judgment and sentences
without prejudice to Mr. Carrion filing a motion to correct what the
State concedes is a scrivener's error in the judgment.
To the extent that Rivas v. State, Case No. 5D21-1223,
2022
WL 1592481 (Fla. 5th DCA, May 20, 2022), which issued during the
rehearing period in this case, is in conflict with our opinion, we
certify conflict. Further, we certify the following question to the
Florida Supreme Court:
6
DOES SECTION 924.051(3), FLORIDA STATUTES (2021),
OR THE COMMON LAW CONTEMPORANEOUS
OBJECTION RULE PROHIBIT AN APPELLATE COURT
FROM NOTING AN UNPRESERVED SCRIVENER'S
ERROR WHICH IS APPARENT ON THE FACE OF A
JUDGMENT OR SENTENCE AND FROM DIRECTING
THE TRIAL COURT TO CORRECT THE ERROR UPON
REMAND?
Affirmed.
ROTHSTEIN-YOUAKIM and SMITH, JJ., Concur.
ATKINSON, J., Concurs specially with opinion.
ATKINSON, Judge, Concurring in part.
I concur in the majority opinion insofar as it affirms the
judgment on appeal and denies relief. And I join in the certification
of the question of great public importance.
I agree that we must deny Carrion's request for correction of
the scrivener's error in the judgment because it was not preserved
for appellate review. However, I do not agree that such preservation
must or even can be effectuated by way of a motion to correct
sentencing error pursuant to Florida Rule of Criminal Procedure
3.800(b) because an error in a judgment is not a "sentencing error."
See Fla. R. Crim. P. 3.800(b) (allowing for the filing a "motion to
correct any sentencing error" (emphasis added)); cf. Jackson v.
7
State,
983 So. 2d 562, 566–67 (Fla. 2008) ("The rule was intended
to permit preservation of errors in orders entered as a result of the
sentencing process—in other words, errors in cost and restitution
orders, probation or community control orders, or in the sentence
itself. . . . If it is not a sentencing error, then when a defendant did
not object at the time, no motion under rule 3.800(b) is necessary to
preserve the issue for appeal; however, the appellate court must
apply the stringent fundamental error standard." (emphasis
added)); see also Pifer v. State, 59 So. 3d 225, 228 (Fla. 2d DCA
2011) (explaining that a sentencing error is one "in the sentence
itself" and that "[r]ule 3.800(b) 'may be used to correct and preserve
for appeal any error in an order entered as a result of the
sentencing process—that is, orders related to the sanctions
imposed.' " (quoting Jackson,
983 So. 2d at 574)).
Furthermore, upon remand after a direct appeal, a scrivener's
error in neither a judgment nor a sentence can be corrected by way
of rule 3.800(b), because such motion may only be filed before or
during the pendency of a direct appeal. See Fla. R. Crim. P.
3.800(b)(1) (allowing a defendant to "file a motion to correct a
sentencing error" "[d]uring the time allowed for the filing of a notice
8
of appeal of a sentence"); (b)(2) (allowing a defendant to file a
"motion to correct a sentencing error" "[i]f an appeal is pending" but
requiring it "to be served before the party’s first brief is served");
Perry v. State,
849 So. 2d 324, 325 (Fla. 2d DCA 2003) (explaining
that "[a] defendant is only entitled to file a rule 3.800(b)(2) motion
during the direct appeal of a sentence" and noting that "rule
3.800(b), as a whole, is structured to apply only to a direct appeal of
a sentence").
Unlike a "written sentencing order that deviates from the oral
pronouncement of sentence," which "constitutes a 'sentencing error'
subject to rule 3.800(b)" and which can also be rectified "by filing a
legally sufficient motion pursuant to rule 3.800(a)," Brown v. State,
225 So. 3d 319, 320–21 (Fla. 3d DCA 2017), a mere scrivener's
error in a sentence can only be corrected by way of a 3.800(b)
motion before or during a direct appeal. However, that has not
stopped some courts from affirming a judgment and sentence
"without prejudice to [an] appellant filing a timely motion to correct
. . . [an unpreserved] scrivener's error." See Del Rosario v. State,
306 So. 3d 327, 327 (Fla. 3d DCA 2020) (citing Perkins v. State,
53
So. 3d 1141, 1141 (Fla. 2d DCA 2011)); Johnson v. State,
954 So.
9
2d 702, 702-03 (Fla. 1st DCA 2007) ("Although the written sentence
contains a scrivener's error, this Court cannot direct the trial court
to correct the error because the issue was not preserved for appeal
by the filing of a timely motion to correct sentencing error pursuant
to Florida Rule of Criminal Procedure 3.800(b). . . . [W]e affirm the
appellant's judgment and sentence without prejudice to appellant's
filing a timely motion for postconviction relief to correct the
sentencing discrepancy."). To the extent that courts have intended
to suggest the availability of rule 3.800, such advice might lead a
postconviction defendant astray.
While a 3.800(a) motion may be filed at any time, such
motions may only be filed to correct an "illegal sentence"—that is,
the "kind of punishment that no judge under the entire body of
sentencing statutes could possibly inflict under any set of factual
circumstances," Kittles v. State, 31 So. 3d 283, 284 (Fla. 4th DCA
2010)—or an "incorrect calculation . . . in a sentencing score sheet."
Fla. R. Crim. P. 3.800(a)(1). And while it is conceivable that under
some circumstances a scrivener's error in a sentence might result in
an illegal sentence, a scrivener's error in a judgment could never
constitute an illegal sentence. See Rule 3.800(a) (allowing a court
10
"at any time [to] correct an illegal sentence imposed by it" (emphasis
added)).
Carrion's judgment incorrectly indicates that he was convicted
following entry of a guilty plea although he was convicted following
a jury trial. Even if this error appeared in his sentence as opposed
to his judgment, it would still be a scrivener's error unpreserved for
appellate review and irremediable by a rule 3.800 motion upon
remand. Cf. Thomas v. State,
763 So. 2d 316, 316 (Fla. 2000)
("[A]lthough [a scrivener's error in a revocation order] is a patent
error, because the error has no quantitative effect on the sentence,
it is not so serious that it should be corrected as fundamental
error."); Cooper v. State, 919 So. 2d 516, 518–19 (Fla. 1st DCA
2005) ("Rule 3.800(b) provides an alternative method of preserving
for review an alleged sentencing error, but it is clear that this
procedure was designed for use only in a direct appeal from the
sentence at issue.").
The question, then, is whether appellate courts have any
authority to remedy an unpreserved scrivener's error in a judgment
or sentence and from where such authority and its limitations
derive. Section 924.051(3) prohibits appeals "taken from a
11
judgment or order of a trial court unless a prejudicial error is
alleged and is properly preserved or, if not properly preserved,
would constitute fundamental error." Yet that language does not
explicitly prohibit appellate courts from hearing unpreserved
arguments on appeal when, as here, an appellant has alleged at
least one other error that has been properly preserved. The
question is what can be done about such unpreserved errors.
Section 924.051(3) provides that a "judgment or sentence may be
reversed on appeal only when an appellate court determines after a
review of the complete record that prejudicial error occurred and
was properly preserved in the trial court or, if not properly
preserved, would constitute fundamental error." But noting a
scrivener's error in a judgment or sentence and directing the trial
court to correct it upon remand does not constitute reversal of a
judgment or sentence, which suggests that the statute allows such
relief in an appeal in which another preserved and prejudicial error
has been alleged. But see Thomas v. State, 725 So. 2d 1148, 1149
(Fla. 2d DCA 1998) (citing section 924.051 in support of the
conclusion that because the appellant "failed to seek correction of
the scrivener's error in the trial court and because the error is not
12
fundamental, he is precluded from raising this issue on appeal"
even though a preserved error was also alleged).
However, the language of case law governing the requirement
to preserve errors for appellate review would suggest that an
appellant can neither seek nor obtain appellate relief to correct an
unpreserved scrivener's error. See State v. Jefferson,
758 So. 2d
661, 664–66 (Fla. 2000) (explaining that "the contemporaneous
objection rule posed a procedural bar that generally prevented
defendants from raising issues on appeal that had not been first
presented to the trial court, absent fundamental error" and
concluding that section 924.051(3) does not "limit the appellate
courts' subject matter jurisdiction in the area of criminal appeals"
but rather "merely codif[ies] the existing procedural bars to
appellate review"). The language of recorded opinions is typically
either restrictive of an appellant's right to assert unpreserved error
or a court's authority to review such an error or the authority to
grant reversal—or all of the above. See, e.g., State v. Osvarth,
661
So. 2d 1252, 1254 (Fla. 3d DCA 1995) ("[A]n appellate court must
'confine the parties litigant to the points raised and determined in the
court below, and [must] not [] permit the presentation of points, or
13
objections for the first time in [the appellate] court . . . ." (emphasis
added) (alterations in original) (quoting Hartford Fire Ins. Co. v.
Hollis, 58 So. 985, 989 (1909)); Baptiste v. State,
324 So. 3d 453,
454 (Fla. 2021) ("Generally, an alleged error is not reviewable on
direct appeal unless the record reflects that trial counsel preserved
the issue . . . ." (emphasis added)); Keech v. Yousef, 815 So. 2d 718,
720 (Fla. 5th DCA 2002) ("The failure to preserve an issue for
appellate review constitutes a waiver of the right to seek reversal
based on that error. . . . 'Florida courts have traditionally held that
questions not timely raised and ruled upon in the trial court will not
be considered on appeal.' " (emphasis added) (quoting Jefferson, 758
So. 2d at 665)).
As such, allowing presentation of an unpreserved scrivener's
error that is not fundamental and reviewing such error could run
afoul of case law expositing the proscriptions of the
contemporaneous objection rule. See, e.g., Steinhorst v. State,
412
So. 2d 332, 338 (Fla. 1982) ("Except in cases of fundamental error,
an appellate court will not consider an issue unless it was presented
to the lower court. . . . Furthermore, in order for an argument to be
cognizable on appeal, it must be the specific contention asserted . . .
14
below." (emphasis added)). Granting relief constituting a reversal
based upon such error is out of the question. See § 924.051(3);
Noetzel v. State, 328 So. 3d 933, 945 (Fla. 2021) ("[W]here . . . the
errors alleged on appeal were not preserved, reversal is warranted
only if the defendant establishes fundamental error." (emphasis
added)). Where does that leave noting an unpreserved scrivener's
error in a judgment or sentence and directing a trial court's attention
to such an error—an unavoidable, even if unintended, consequence
of merely stating in an appellate opinion that the court is powerless
to grant relief related to such error?
As the majority notes, a court has authority to "correct clerical
mistakes in its own judgments and records." See Palmer v. State,
300 So. 3d 1247, 1248 (Fla. 5th DCA 2020) (citing Rodgers v. State,
934 So. 2d 1207, 1221 (Fla. 2006)); cf. Fla. R. Civ. P. 1.540(a)
("Clerical mistakes in judgments, decrees, or other parts of the
record and errors therein arising from oversight or omission may be
corrected by the court at any time on its own initiative or on the
motion of any party . . . ."); Averett v. State, 10 So. 3d 1135, 1135
(Fla. 4th DCA 2009) ("With respect to . . . [his claim] that the
judgment did not properly reflect the title and statute number of the
15
offense for which he was charged . . . , and to which he entered a
negotiated plea, we affirm without prejudice to his filing a motion to
correct a scrivener's error pursuant Florida Rule of Civil Procedure
1.540(a)."). Until such time as an appellate court's proper course of
action regarding a trial court's unpreserved scrivener's error is
clarified by statute, rule, or Florida Supreme Court opinion,
perhaps nothing more than that need—or should—be said.
Opinion subject to revision prior to official publication
16
