MICHAEL ANTHONY PRENTICE v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL ANTHONY PRENTICE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3498
[June 2, 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.
ON MOTION FOR REHEARING AND REHEARING EN BANC
CONNER, J.
We deny the appellant’s motion for rehearing and rehearing en banc,
but withdraw our opinion dated February 17, 2021, and issue the
following in its place:
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 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, 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. As to both of those counts, the trial court imposed
the maximum sentence of thirty years in prison. The sentences for all five
counts were imposed concurrently.
After pronouncing the sentences for each count and upon the trial
court’s request, the court clerk announced various costs and fees,
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.
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Thereafter, Appellant gave notice of appeal. During the pendency of
this appeal, Appellant filed a motion to correct sentencing errors pursuant
to Florida Rule of Criminal Procedure 3.800(b)(2). In the motion, Appellant
argued that: (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) there was a scrivener’s error
in the judgments for the attempted sexual battery counts which 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.
Appellate Analysis
The standard of review for a motion to correct 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
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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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, 131 (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
years imprisonment followed by the remainder of the defendant’s life on
probation. 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 only applies 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 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. 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, a fact not present in
either the Hernandez or Leon decisions. 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 the application of the “would have
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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. There is nothing in the record to suggest that 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 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
life sentence may be upheld. See Sherrod v. State, 292 So. 3d 804, 805
(Fla. 4th DCA 2020) (holding that resentencing 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 “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 appearance was not required). Instead, rather
than elevate form over substance, we hold that on the facts of this case,
2 In 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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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 a provision in a written sentence erroneously
and 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 the sentences as to
the molestation counts in this case can be resolved by the ministerial act
of entering correctly worded written sentences which remove the
mandatory minimum sentence provisions, and a hearing and Appellant’s
presence is not required to make the correction. See id.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 774.04. 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
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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 courts order assessing the amount of public defender fees
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 making reference to section 777.04,
Florida Statutes. 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.
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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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.
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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