Gray v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WESTON GRAY, )
)
Appellant, )
)
v. ) Case No. 2D13-1179
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 4, 2016.
Appeal from the Circuit Court for Polk
County; John Radabaugh, Judge.
Howard L. Dimmig, II, Public Defender,
and William L. Sharwell, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Gillian N. Leytham,
Assistant Attorney General, Tampa, for
Appellee.
ORDER RELINQUISHING JURISDICTION TO THE TRIAL COURT
TO RESOLVE MOTIONS UNDER FLA. R. CRIM. P. 3.170(l)
ALTENBERND, Judge.
Weston Gray appeals his judgments and sentences for attempted
aggravated assault and battery. Unfortunately, we conclude that his judgments and
sentences have yet to be rendered. Accordingly, we relinquish jurisdiction to permit the
trial court to take the steps necessary to render these orders. The State argues that this
appeal is untimely. We write to reject this argument because we conclude that a "memo
of sentence" in the Tenth Judicial Circuit does not qualify as a rendered sentence that
can be attached to a commitment or appealed to this court.
Mr. Gray was arrested in November 2011 for offenses including
aggravated assault with a deadly weapon and battery. The State filed an information
against Mr. Gray for these charges. In April 2012, Mr. Gray negotiated a plea on the
day his case was set for trial. He agreed to be sentenced as a habitual offender to the
lesser-included offense of attempted aggravated assault and to misdemeanor battery in
exchange for a sentence of eighteen months' imprisonment.1 The trial court accepted
the plea and agreed to delay sentencing until mid-May under a proper Quarterman2
agreement.
Mr. Gray failed to appear for sentencing in May and on two occasions
thereafter. Apparently, he was arrested on new charges and then brought to court for
sentencing in this case in March 2013. At the sentencing hearing, he did not provide an
adequate explanation for his failure to appear. The trial court sentenced him to five
years in prison for the attempted aggravated battery and to one year in prison for the
misdemeanor.
On March 5, 2013, a "memo of sentence" or "snapout" was filed that
describes this sentence. See Phillips v. State, case number 2D15-1698, 2-3 & n.2 (Fla.
2d DCA Mar. 4, 2016). This document contains no fingerprints and does not appear to
1
The eighteen-month term as a habitual offender obviously could not have
properly applied to the misdemeanor battery.
2
Quarterman v. State, 527 So. 2d 1380 (Fla. 1988).
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have been signed by the trial judge. A "Monetary Obligation Order" or cost judgment
was also filed. It was not signed by the trial judge, but it did contain a rubber-stamped
facsimile signature with a representation that it was authorized by section 116.34,
Florida Statutes.3
On March 13, 2013, Mr. Gray filed a very short motion to withdraw his plea
agreement. On April 15, he filed a motion to mitigate and reduce his sentence; he also
filed a second, more detailed motion to withdraw his plea. On April 16, he filed a third
motion to withdraw his plea with similar allegations as those in the second motion to
withdraw. Finally, on April 23, he filed a motion for a court-appointed attorney, claiming
that his earlier attorney had withdrawn from the case.
In the midst of these filings, the trial court filed proper judgments and
sentences on April 18. The judgments and sentences had been signed by the trial
judge on March 4, but they were not served or recorded until April 18.
On April 29, the trial court filed photocopies of each of these motions with
the exception of the second and third motions to withdraw plea. On each of these
copies, the judge rubber stamped the phrase "motion considered and ______." The
judge then hand wrote the word "denied" on the blank line along with the date, April 26,
2013, and his signature.4
3
Section 116.34 allows "public officials" or "authorized officer[s]" to use
facsimile signatures after filing certain documents with the Department of State. We
have considerable doubt that this statute applies to signatures on orders entered by
Article V judicial officers, but that is an issue for another day.
4
From this record, we are uncertain whether Mr. Gray was correct that his
attorney had withdrawn. The rubber-stamped order denying his motion for appointment
of an attorney does not indicate that this ruling was served on anyone.
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Mr. Gray had filed a pro se notice of appeal to this court on March 14. He
did not pay the filing fee or file an order of indigency, and this appeal was initially
dismissed. After we received an order of indigency, this court reinstated the appeal,
and ultimately Mr. Gray's attorney and the State filed their respective briefs.
Mr. Gray's attorney filed a brief arguing that the trial court should not have
denied Mr. Gray's motions to withdraw plea. The State responded with a brief making
several arguments. We focus on one of its arguments: that Mr. Gray's second and third
motions to withdraw plea were untimely because Mr. Gray's sentences "were 'rendered'
when the trial court filed its written and signed 'Memo of Sentence/Order of the Court'
memorializing those sentences." As we explain, this argument is incorrect. Because
the actual written sentences were rendered on April 18, when they were filed with the
clerk of court, the second and third motions to withdraw plea, filed on April 15 and 16,
were timely and have never been ruled upon. Pursuant to Florida Rule of Appellate
Procedure 9.020(i), the judgments and sentences are not "deemed rendered" because
the motions to withdraw plea have not been disposed of by a signed, written order.
Although we could dismiss this appeal, we elect to relinquish jurisdiction to the trial court
to give "the parties additional time to obtain a final order from the lower tribunal." See
Fla. R. App. P. 9.110(l).
We reject the State's argument that the "memo of sentence" serves as a
judgment and sentence in this case. Florida Rule of Criminal Procedure 3.986(a) states
that a circuit court "shall" use a judgment and sentence in conformity with the form
provided in that rule. The "memo of sentence" is not in conformity with this rule in
numerous respects. Perhaps the most important omission is the absence of any place
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on the form to attach the defendant's fingerprints and to certify that the fingerprints are
those of the defendant. In the case of a felony conviction, the fingerprints are required
not only by the form but also by statute. See § 921.241, Fla. Stat. (2011). These
omissions on the "memo of sentence" are not mere "variations from these forms" that
"do not void" a judgment under rule 3.986. This form simply does not constitute a
judgment or a sentence even if the form is signed by a judge, which this one apparently
was not. This form not only fails to serve as a rendered judgment and sentence for
purposes of appeal, but it lacks the information sufficient to authorize the Department of
Corrections or a sheriff to detain a person as a convicted defendant because it lacks
any evidence of the identity of the defendant named in the document.
Accordingly, we are without authority to proceed with this appeal. This
case is relinquished to the trial court, for a period of thirty days from the date of this
opinion, to enter an order disposing of the pending motions to withdraw plea. We note
that the motions are regarded as a critical stage of the proceeding and that Mr. Gray is
thus entitled to conflict-free counsel. See Krautheim v. State, 38 So. 3d 802, 804-05
(Fla. 2d DCA 2010); see also Padgett v. State, 743 So. 2d 70, 73 (Fla. 4th DCA 1999).
Jurisdiction relinquished for thirty days.
KELLY and SALARIO, JJ., Concur.
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