       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                     CARLTON DEVONTA JONES,
                            Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D18-1945

                           [December 4, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Michael C. Heisey, Judge; L.T. Case Nos.
472015CF000695A, 472017CF000639A, 472017CF000640A.

  Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez-
Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant, who was charged as an adult for crimes committed when he
was a juvenile, challenges his sentence on the ground that his pre-
sentence investigation report failed to include the recommendations from
the Department of Juvenile Justice as required by section 985.565(3),
Florida Statutes (2018). We affirm, because the issue was not preserved.
Even if it was preserved, because he was an adult at sentencing, the
omission was harmless.

   Appellant was charged with lewd and lascivious battery on a child. At
the time he was seventeen, but the state attorney exercised its discretion
under section 985.557(1)(b), Florida Statutes (2018), and filed charges
against appellant as an adult. During the pendency of the case, he was
charged with two additional grand theft offenses. He finally pled to the
charges in the spring of 2018. A PSI was prepared. At sentencing,
appellant had no objection to the information contained in the PSI;
instead, he disagreed with the recommendation and informed the court
that it appeared the preparer did not speak to the public defender, the
state attorney, or the victim. The State asked for a twelve-year sentence.
Defense counsel argued for a youthful offender sentence to one year in jail,
followed by probation, calling character witnesses in support. No mention
was made of juvenile sentencing. The court sentenced appellant, who was
then twenty years old, to 96.45 months Florida State Prison, the lowest
permissible sentence under the Criminal Punishment Code, on the lewd
and lascivious battery, a second-degree felony. It also sentenced him on
two grand theft charges which arose after the battery charge. The court
imposed all sentences concurrently. Defendant appealed the sentence.
During the pendency of the appeal, he filed a Florida Rule of Criminal
Procedure 3.800(b) motion attacking his sentence for failure of the PSI to
include recommendations from the DJJ as required by section
985.565(3)(a), Florida Statutes, which states that “The presentence
investigation report must include a comments section prepared by the
Department of Juvenile Justice, with its recommendations as to
disposition.” The State objected, contending that appellant had waived
any compliance with this provision. The court denied the motion,
prompting this appeal.

   Section 985.565(4)(a)2., Florida Statutes (2018), provides “the court
may sentence [a child] who has been transferred for criminal prosecution
pursuant to information . . . [a.] As an adult; [b.] Under chapter 958 [as a
youthful offender]; or [c.] As a juvenile under this section.” For any
sentencing, however, the court shall receive a presentence report with
recommendations from the DJJ. Section 985.565(3) provides:

      (a) At the sentencing hearing the court shall receive and
      consider a presentence investigation report by the
      Department of Corrections regarding the suitability of the
      offender for disposition as an adult or as a juvenile. The
      presentence investigation report must include a comments
      section prepared by the Department of Juvenile Justice, with
      its recommendations as to disposition.         This report
      requirement may be waived by the offender.

Appellant’s PSI did not include any comments from the Department of
Juvenile Justice, but he failed to object at sentencing, even though he
objected to other omissions in the PSI. To attempt to remedy this defect,
his appellate attorney filed a motion to correct his sentence pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2). We conclude, however,
that failure to have a recommendation from the DJJ constituted an error
in the sentencing process and not an error in the sentence. Therefore, it
was not properly preserved.


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    In Jackson v. State, 983 So. 2d 562 (Fla. 2008), the court limited the
type of errors which were correctable pursuant to rule 3.800(b). “[A]
‘sentencing error’ that can be preserved under rule 3.800(b)(2) is an error
in the sentence itself-not any error that might conceivably occur during a
sentencing hearing.” Id. at 573 (citing Jackson v. State, 952 So. 2d 613,
616 (Fla. 2d DCA 2007)). Rule 3.800(b) was not intended to circumvent
the rules requiring contemporaneous objections. 983 So. 2d at 573. Thus,
its purpose is to correct errors in the sentence itself, not errors in the
process. Correctable sentencing errors are harmful errors in an order
entered as a result of the sentencing process, such as when the sentence
exceeds the statutory maximum, when the scoresheet is inaccurate, and
when the court improperly imposes a departure sentence or assesses
costs. 983 So. 2d at 572. In contrast, defendants have the opportunity to
object to errors that occur during the sentencing process, such as the
improper introduction of evidence. 983 So. 2d at 573. Rule 3.800(b) “was
never intended to allow a defendant (or defense counsel) to sit silent in the
face of a procedural error in the sentencing process and then, if unhappy
with the result, file a motion . . . .” Id.

    Based upon Jackson, we conclude that the omission of the DJJ
recommendation in a PSI is an error in the sentencing process, not an
error in the order imposing the sentence. The order imposing the lowest
permissible sentence under the Criminal Punishment Code was not illegal,
and no error in the sentence has been alleged. Section 985.565(4)(a)4.
provides that any sentence imposing adult sanctions is presumed
appropriate. The lack of the DJJ recommendation can be equated with a
failure to produce evidence, which would be part of the sentencing process.
Although in Smith v. State, 762 So. 2d 929, 933 (Fla. 4th DCA 2000), we
commented that a defendant should have preserved his argument that the
PSI failed to include DJJ’s recommendations as to disposition through
timely objection at sentencing or rule 3.800(b) motion, our statement was
not only dicta but was decided well before Jackson. Therefore, it does not
control this case.

   Even if the issue were preserved, we would hold that any error in
omitting comments from DJJ would be harmless beyond a reasonable
doubt, as appellant was an adult when he was sentenced and had thus
aged out of the juvenile justice system. See § 985.0301(5)(a), Fla. Stat.
(2018). It appears that the reason for comments from DJJ is to provide
information to the trial court on various statutory criteria which the court
must consider if it chooses to sentence a defendant as a juvenile. For
instance, pursuant to section 985.565(1)(b), the court must consider:
“prior commitments to the Department of Juvenile Justice, the former
Department of Health and Rehabilitative Services, the Department of

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Children and Families, or other facilities or institutions . . . . [t]he
prospects for adequate protection of the public and the likelihood of
deterrence and reasonable rehabilitation of the offender if assigned to
services and facilities of the Department of Juvenile Justice [and] . . . .
[w]hether the Department of Juvenile Justice has appropriate programs,
facilities, and services immediately available.” All these considerations are
irrelevant in this case. Thus, the failure to have DJJ comments in the PSI
is harmless beyond a reasonable doubt.

   For the foregoing reasons, we affirm appellant’s conviction and
sentence.

CIKLIN, J., concurs.
SINGHAL, RAAG, Associate Judge, concurs with opinion.

SINGHAL, RAAG, Associate Judge, concurring.

   I wholeheartedly concur with Judge Warner’s thoughtful analysis. I
write, however, only to comment on an issue apparent to a trial judge
graciously permitted to sit as an Associate on the appellate court. The
amount of work and time devoted to what may appear to be a routine
opinion was extraordinary.

   The issue raised in this appeal should never have been before this
court. Appellants should, as they say, be careful what they wish for. Here,
the best possible result, consistent with appellant’s argument, would have
been remand for re-sentencing. There, appellant could have received 25
years Florida State Prison, or at best, just over eight years, the exact same
sentence from which he sought appellate review. Florida appellate judges
consider many difficult cases each year. This should not have been one of
them.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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