author: PER CURIAM. PARIENTE, J., QUINCE, J.,

text:
    STATE of Florida, Petitioner, v. Paul VanBEBBER, Respondent.
    No. SC01-2558.
    Supreme Court of Florida.
    May 8, 2003.
    Rehearing Denied Aug. 25, 2003.

      Charles J. Crist, Jr., Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Petitioner.
    Joshua Faett and Rexford Darrow of the Law Offices of Casassa, Mangone, Miller and Faett, Naples, FL, for Respondent.
   PER CURIAM.

We have for review the decision in State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001), which certified conflict with the decision in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), approved on other grounds, 762 So.2d 507 (Fla.2000), on the issue of whether the mitigator in section 921.0026(2)(j), Florida Statutes (Supp. 1998), is available to support a downward departure from a sentence for a driving under the influence (DUI) conviction. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a felony DUI conviction. Accordingly, we approve the Second District’s decision in VanBebber, and disapprove Warner to the extent it conflicts with this decision.

BACKGROUND

The Second District summarized the facts of this case as follows:

On May 23, 1999, Paul VanBebber was driving home after a party at which he had consumed sufficient alcohol that his faculties were impaired. He failed to stop at a stop sign and collided with another vehicle that contained a family of six: two parents, a six-year-old son, a four-year-old daughter, a four-week-old daughter, and the father’s brother who was visiting from Columbia. The three children suffered injuries and their uncle was killed in the crash. The State charged VanBebber with one count of DUI with property damage, three counts of DUI with personal injury, one of them with serious bodily injury, and one count of DUI/manslaughter. Van-Bebber, exhibiting extreme and sincere remorse while recognizing his fault, pleaded nolo to all offenses as charged.
At the sentencing hearing, the trial court heard from members of the victim’s family as well as VanBebber’s, including VanBebber himself. Each side outlined the devastating effect the accident has had on the families. Defense counsel argued for a downward departure from the guidelines sentence of 175.9 to 240 months based on the statutory mitigator of “offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)0"), Fla. Stat. (Supp.1998). The trial court agreed that the evidence fulfilled the requirements of section 921.0026(2)0) and imposed a downward departure. It sentenced VanBebber to 200 months’ incarceration for the counts of DUI/manslaughter and DUI with serious personal injury, but suspended it upon completion of fifteen years’ probation with special conditions. The State does not dispute that the evidence presented at the sentencing hearing supported the mitigator^] although the trial court did observe with some puzzlement that it was unsure how one would commit this crime in a sophisticated manner. The State objected to the downward departure, thus preserving this issue, which it then appealed.

VanBebber, 805 So.2d at 919 (footnotes omitted). The Second District affirmed the decision of the trial court and held the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a DUI conviction, but certified conflict with Warner on this issue. See VanBebber, 805 So.2d at 921.

DISCUSSION

Section 921.0026 is part of the Florida Criminal Punishment Code and provides, in relevant part:

921.0026 Mitigating circumstances. — This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.
(1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.
(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:
(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
(3) The defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.

§ 921.0026, Fla. Stat. (Supp.1998). In concluding that the mitigator in section 921.0026(2)(j) is available to support a downward departure from a sentence for a DUI conviction, the Second District reasoned: (1) section 921.0026 states unequivocally, “This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998,” and (2) cognizant of the public policy against drunk driving, the Legislature still did not exempt DUI crimes from application of section 921.0026(2)0). VanBebber, 805 So.2d at 920.

We agree with the Second District’s reasoning. Section 921.0026 plainly states, “This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.” Because the mitigator in section 921.0026(2)0) applies to any felony offense, except any capital felony, committed on or after October 1, 1998, it is available to support a downward departure from a felony DUI conviction. The fact that the Legislature specifically exempted only capital felonies is further support for the conclusion that section 921.0026(2)0) applies to felony DUI convictions. Legislative intent must be determined primarily from the language of the statute. See Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000). “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

The State argues this Court should resolve the certified conflict by adopting the Fourth District’s decision in Warner. In Warner, the defendant pleaded guilty to three counts of driving under the influence arising out of one episode. See 721 So.2d at 768. The trial court accepted the plea and entered a downward departure sentence based on three mitigating factors in section 921.0016(4), Florida Statutes (1995). One of the grounds for departure was that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant had shown remorse. On appeal, the Fourth District agreed with the State’s assertion that there was an insufficient basis in the record to sustain the departure because the trial court based the downward departure on proffered evidence and erred in not taking evidence. Warmer, 721 So.2d at 769.

The Fourth District also concluded that on remand, the mitigator of “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse” would not be available to support a downward departure of the defendant’s sentence. Id. As to this issue, the Fourth District stated:

Given the state’s strong public policy against DUI, we conclude that this reason for departure is not available in this case. If this DUI could be considered an isolated incident, then all first DUI’s by people having clean records could be considered such. Nor do we think that drunk driving can be “committed in an unsophisticated manner.”

Id.See also State v. Beck, 763 So.2d 506, 508 (Fla. 4th DCA 2000) (“We also note that drunk driving cannot be committed in an unsophisticated manner.”).

Although we fully recognize the State’s strong public policy against DUI, we find that the issue in this case, whether the mitigator in section 921.0026(2)(j) is available to support a downward departure from a DUI conviction, is resolved by the clear and unambiguous statutory language of section 921.0026. Because the statute states that the mitigator in section 921.0026(2)(j) applies to any felony offense, except any capital felony, committed on or after October 1, 1998, we hold that the mitigator in section 921.0026(2)© is available to support a downward departure from a felony DUI conviction.

The State also argues, however, that to hold section 921.0026(2)© applicable to felony DUI convictions would create conflict with section 921.0026(3), which provides:

(3) The defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.

We find that no conflict is created by holding section 921.0026(2)© applicable to felony DUI convictions. Under subsection (3), intoxication at the time of the offense cannot be used as a mitigating factor to support a downward departure from a sentence under the sentencing guidelines. There is no prohibition, however, against using the mitigators listed in section 921.0026(2) in cases where the offense is intoxication. In this case the trial court imposed a downward departure on the fact that VanBebber was remorseful for an isolated incident committed in an unsophisticated manner. Again, if the Legislature intended to specifically exempt felony DUI offenses from this statutory scheme this Court must presume that it would have explicitly done so in the statute. As the Second District noted, “we shall not judicially legislate and interpret the law to negate the clear language used by the legislature.” VanBebber, 805 So.2d at 920.

Finally, the State argues that the Second District improperly relied on State v. Sachs, 526 So.2d 48 (Fla.1988), to buttress its conclusion that section 921.0026(2)© is available in this case. In Sachs, the defendant pleaded guilty to two charges of DUI manslaughter and was sentenced to four years of community control, which was a downward departure from the guidelines recommendation. See id. at 49. The trial court gave five reasons for the downward departure, including that the defendant would continue to suffer a great deal of remorse and shame. This Court affirmed the reasons relied on by the trial court where they were supported by clear and convincing proof. See id. at 51. The State now argues that when this Court considered the reasons for departure in Sachs, it was looking at the possible lack of moral culpability in an otherwise strict liability criminal statute, not the “unsophisticated manner” in which the crime was committed. However, by relying on Sachs, the Second District merely intended to show that this Court previously found the same reasons for departure valid in a case involving a DUI offense, even before the reasons were codified as a mitigator in the Florida Statutes. Therefore we find that the Second District did not err by relying on Sachs.

CONCLUSION

Section 921.0026 is clear and unambiguous and provides that the mitigators found therein are applicable to all felony offenses except capital felonies. The offense of DUI is a noncaptial felony offense. Therefore, we hold that the mitigator in section 921.0026(2)© is available to support a downward departure from a sentence for a felony DUI conviction. We approve the decision of the district court of appeal and disapprove Warner to the extent it conflicts with this decision.

It is so ordered.

ANSTEAD, C.J., PARIENTE and LEWIS, JJ., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.

QUINCE, J., dissents with an opinion, in which WELLS, J., concurs.

PARIENTE, J.,

concurring.

I write to express my agreement with the majority and elaborate on my reasons for concurring. Section 921.0026(2)©, Florida Statutes (2002), allows the trial court to impose a downward departure sentence if the trial court finds that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. If the dissent is correct that the departure reason is inapplicable, then the trial court in this case would have been required to impose a Criminal Punishment Code prison sentence of no less than 175.9 months (14.65 years) up to 240 months (20 years) in prison.

The evidence presented in the trial court establishes the basis for a downward departure pursuant to section 921.0026(2)©: this was an isolated instance and the defendant exhibited “extreme and sincere remorse while recognizing his fault.” These facts are more fully detailed in Judge A-tenbernd’s concurrence:

Mr. VanBebber is twenty-five years old. At the time of this offense, he was employed as a plumber. He has a wife and an infant child. He has no criminal record. Mr. VanBebber has never previously been arrested for DUI. His driving record includes only a few minor traffic infractions. He had not had a drink for six months prior to the night of this accident. He had a blood alcohol level of about .16% at the time of the accident. He stopped at the scene and administered CPR to one of the victims. He pleaded guilty to these offenses with no promise as to the sentence he would receive. He is a religious man, who has repeatedly stated that he wishes that he could have been the person who died in this accident.

State v. VanBebber, 805 So.2d 918, 921 (Fla. 2d DCA 2001) (Atenbernd, A.C.J., concurring).

Section 921.0026(2)© appears to have been written exactly for a defendant such as VanBebber. Nothing in the wording of this statute indicates that the Legislature intended to preclude the trial court from using this subsection as a basis for exercising its discretion to impose a sentence less than the Criminal Punishment Code minimum in a case of DUI involving death or serious injury. As this Court explained recently in addressing a similar issue regarding whether the trial court was precluded as a matter of law from imposing a downward departure sentence:

There is no question that the Legislature has the authority to preclude a trial judge from imposing a downward departure sentence .... Our role, however, is limited to determining whether the Legislature intended to do so. Accordingly, it is not this Court’s function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute.
When construing a statutory provision, legislative intent is the polestar that guides the Court’s inquiry. Legislative intent is determined primarily from the language of a statute. When faced with an unambiguous statute, the courts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. This principle is not a rule of grammar; it reflects the constitutional obligation of the judiciary to respect the separate powers of the legislature.

State v. Rife, 789 So.2d 288, 292 (Fla.2001) (citations and quotation marks omitted).

Regarding the position taken in the dissent that this mitigator is unavailable in this case because DUI cannot be committed in an unsophisticated manner and does not involve planning, there is no support for the view that the Legislature intended to give the trial courts discretion to depart downward only for crimes that are capable of being committed in a sophisticated manner. Instead, when all of the phrases of this statutory mitigator are read together, the more reasonable view is that unless the crime involves some sophistication, this mitigator may be used if the trial court finds that the offender has shown remorse and the offense was an isolated incident. Indeed, it is logical to conclude that the Legislature intended to withhold the benefit of this statutory mitigator from a defendant who, although he or she has demonstrated remorse for an offense that was an “isolated” incident, nonetheless committed the crime in a sophisticated manner either in its planning or execution. As the Second District succinctly stated in this case:

First, section 921.0026, which lays out certain mitigating circumstances, states unequivocally: “This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.” There is no exception provided for DUI offenses, as was done for a capital felony. Thus, the legislature did not preclude mitigation if the crime is DUI and was an isolated incident, committed in an unsophisticated manner, for which the defendant has shown remorse. We must, of course, strictly construe penal statutes.

VanBebber, 805 So.2d at 920.

Regarding the presumption under the Criminal Punishment Code that a lengthy prison term is appropriate for VanBeb-ber’s offenses, I concur in Judge Alten-bernd’s observations as to the sentencing discretion of the trial judge in a tragic case such as this:

I write to encourage the legislature to consider authorizing more discretion for trial courts to impose adequate alternative punishments for DUI manslaughter. The victim injury points that are automatically included in a scoresheet for this offense always result in a lengthy prison sentence. There are some occasions when it is not a wise expenditure of tax dollars to impose lengthy prison terms for this offense.
If Mr. VanBebber had run this stop sign with no other car in the intersection, the police would have arrested him for simple DUI. His likely penalty would have been a $500 fíne. See § 316.193(2)(a), Fla. Stat. (2000). He was not so fortunate. There is no denying that the tragedy for his victims cannot be described in words or measured by days in prison. But it is the injuries in this automobile accident alone that have caused his recommended penalty to jump from a $500 fine to twenty years’ imprisonment. Twenty years’ imprisonment for this man would cost Florida’s taxpayers nearly $1,000,000. His wife and child would have no one to support them. Given that this crime is primarily the result of terribly bad judgment rather than an evil criminal mind, one questions whether this is the best way to deter future offenses or punish Mr. Van-Bebber.
The sentence actually imposed in this case will force Mr. VanBebber to spend 600 hours over the next fifteen years repeatedly telling teenagers how he killed Ivan Bjazevic. Over and over again, he will be forced to relive in his own words the awful consequences of his bad judgment. Without a driver’s license, it seems highly unlikely that this religious man will ever drive intoxicated again. With some luck, maybe his story will encourage a few teenagers to avoid the conduct that created victims in this case.
I might prefer a system that allowed trial judges the option to imprison defendants like Mr. VanBebber every weekend for twenty years. The current system, however, incarcerates people who are not always dangerous to society. I suspect that the tax dollars that we are spending on incarceration due to mandatory victim injury points could be used more effectively in other programs addressing the very serious and real problem of DUI.

I likewise urge the Legislature to examine whether a prison term under the guidelines must necessarily be imposed for this type of offense in the absence of one of the twelve grounds for a downward departure under section 921.0026. Not only would lengthy incarceration cost the State and its taxpayers upwards of one million dollars in this case, but the defendant’s child would suffer both emotionally and financially from being denied a father.

I understand that there are those who might urge that in light of our State’s strong public policy against drunk drivers, this defendant deserves a lengthy prison term. We cannot restore the life lost or heal the injuries suffered in the tragedy caused by the defendant’s act, which I neither condone nor excuse. In this case, however, the trial court crafted an appropriately onerous penalty that retains the prospect for lengthy incarceration if at any time during the next fifteen years the defendant violates the terms and conditions of his probation.

VanBebber received 200 months’ incarceration that will remain suspended only if he successfully completes fifteen years’ probation with special conditions, including one year in the Collier County jail. The other special conditions are:

[N]o possession or use of any form of alcohol, controlled substance, or unpres-cribed medication; random drug and alcohol screens; forty hours of community service each year with groups involved in preventing teenage alcohol consumption; permanent loss of driver’s license; restitution; court costs and fines; the costs of supervision were waived until the restitution and court costs were paid.

VanBebber, 805 So.2d at 920 n. 2. Thus, if the defendant violates any conditions of probation, including the special conditions, he may be incarcerated for up to 16.6 years, less credit for time previously served. He will be required as part of his forty hours of community service for the next fifteen years to speak to groups involved in preventing teenage drinking. What a powerful message VanBebber will be able to deliver based on what occurred in this case. Consequences that will remain in place for the rest of his life include the permanent loss of his driver’s license. These substantial sanctions fashioned by the trial court are tailored to fit the crime and offender, and also serve in some way to attempt to repair the damage caused by his terrible act.

For all these reasons, I agree with the majority’s conclusion that the trial court in this case was permitted to use section 921.0026(2)© to support a downward departure sentence for a felony DUI conviction.

ANSTEAD, C.J., concurs.

QUINCE, J.,

dissenting.

I disagree with the majority that because section 921.0026, Florida Statutes (Supp.1998), provides that the mitigators in that section are applicable to all felonies except capital felonies, that the mitigator in section 921.0026(2)© is applicable to the felony of driving under the influence (DUI). I would affirm the view espoused by the Fourth District in State v. Beck, 763 So.2d 506 (Fla. 4th DCA 2000), and State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), that the mitigating factor in section 921.0026(2)© is not applicable to DUI convictions.

In Beck, the Fourth District reversed a trial court’s downward departure from the sentencing guidelines. One of the reasons given for the departure was the section 921.0026(2)(j) mitigating factor. In rejecting that factor the court said:

The final ground for departure given by the trial court was that the offense was committed in an unsophisticated manner for which the defendant has shown remorse. In State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), rev. granted, 732 So.2d 328 (Fla.1999), this court recognized that given the state’s strong public policy against DUI, this reason for departure is not valid. We also note that drunk driving cannot be committed in an unsophisticated manner.

Beck, 763 So.2d at 508. I believe the Fourth District is correct in its reasoning because the crime of driving while under the influence is not capable of being committed in a sophisticated manner.

This mitigating factor contemplates that the crime that has been committed is one that can be done in at least two ways, sophisticated or unsophisticated. If the crime is one that is not capable of being committed in a sophisticated manner, then logically, it cannot be committed in an unsophisticated manner. As the Fourth District held, DUI is a crime which cannot be committed in a sophisticated or unsophisticated manner.

This reading of section 921.0026(2)(j) does not run afoul of the general provision that the mitigators in this section are applicable to all noncapital felonies. Even with that general principle as a guide, we must be ever mindful of the fact that not every mitigating factor can be applied to every noncapital felony. In determining whether a mitigating factor is applicable, the sentencing court must look at the facts and circumstances of the offense as well as the type of crime that was committed. When the facts and circumstances and the type of crime are considered in this case, I reach the conclusion that section 921.0026(2)© is not applicable to the crime of DUI.

WELLS, J., concurs.

      . The State contends this is a slight misstatement. The mitigator at issue in this case has three parts-the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. See § 921.0026(2)(j), Fla. Stat. (Supp.1998). The State agreed that the offense was an isolated incident for which the defendant has shown remorse, but disputed whether the offense was committed in an unsophisticated manner.

      . §§ 921.002-921.0027, Fla. Stat. (Supp. 1998).

      . The Second District buttressed its conclusion with State v. Sachs, 526 So.2d 48 (Fla.1988), where, before the current Florida Criminal Punishment Code was instituted, this Court found the manner of committing the offense, the fact that it was an isolated incident, and the fact that the defendant had shown remorse were valid reasons for a downward departure in a DUI case. See VanBebber, 805 So.2d at 920-21.

      . As noted above, section 921.0026(2)(j) is part of the Florida Criminal Punishment Code. See §§ 921.002-921.0027, Fla. Stat. (Supp.1998). The introduction to the Code also provides: “The Criminal Punishment Code shall apply to all felony offenses, except capital felonies, committed on or after October 1, 1998.” § 921.002, Fla. Stat. (Supp. 1998).

      . The offense in this case was committed on May 23, 1999.

      . Section 921.0016(4) was repealed effective October 1, 1998, with the implementation of the Florida Criminal Punishment Code. See §§ 921.002-921.0026, Florida Statutes (1997). Section 921.0026 was enacted effective October 1, 1998. The mitigators listed in sections 921.0016(4) and 921.0026(2) are identical.

      . In Warner, it appears the Fourth District mistakenly cited 921.0016(3)(j) instead of 921.0016(4)(j), Florida Statutes (1995), when discussing this mitigator.

      . A very thoughtful recent law journal article urges the adoption of DUI drug courts, modeled on the highly successful drug courts that have been shown to substantially reduce recidivism. See Gail Sasnett-Stauffer & E. John Gregory, A Drug by any Other Name is Still a Drug: Why the Florida Judiciary Should Start Treating DUI as any Other Drug Offense, 13 U. Fla. J.L. & Pub. Pol’y 299 (2002). I agree that this idea has merit and I know of several county court judges who have attempted to incorporate the drug court model into DUI adjudications. This issue should be more fully explored jointly by all three branches of government since our experience with drug courts in Florida has shown that a cooperative approach has been most successful. Other stakeholders should be brought into this discussion, including representatives of Mothers Against Drunk Driving (MADD), the public defenders and the state attorneys.

      . In this case, a lengthy prison term would satisfy only the goal of retribution. On the other hand, a balanced and restorative justice approach views crime as "more than a violation of the criminal law” but also as a disruption "in a three-dimensional relationship of victim, community and offender.” See Leena Kurki, U.S. Department of Justice, Incorporating Restorative and Community Justice Into American Sentencing and Corrections 2 (1999). It further recognizes that because crime "harms the victim and the community, the primary goals should be to repair the harm and heal the victim and the community.” Id. The goal of any case disposition should be to promote public safety, competency development, and accountability. Further, sentencing that has been based on restorative justice principles has shown higher rates of compliance with payment of restitution amounts and in completion of community service. See generally Gordon Bazemore, A Vision for Community Juvenile Justice, 49 Juv. & Fam. Ct. J. 55 (Fall 1998).


source: Caselaw Access Project

author: PARIENTE, J. BELL, J., WELLS, J.,

license: Public Domain

text:
    James KNOWLES, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2778.
    Supreme Court of Florida.
    June 12, 2003.

      Richard J. D’Amico, Special Assistant Public Defender, Bartow, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert J. Krauss, Chief — Assistant Attorney General, Chief of Criminal Law, Tampa, and Katherine Y. Blanco, Senior Assistant Attorney General, Tampa, FL, for Respondent.
   PARIENTE, J.

We have for review the decision in Knowles v. State, 800 So.2d 259 (Fla. 2d DCA 2001), which misapplies our decision in Goodwin v. State, 751 So.2d 537 (Fla.1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; see also Robertson v. State, 829 So.2d 901, 904 (Fla.2002) (stating that misapplication of supreme court decision creates conflict jurisdiction).

The pertinent facts are as follows. James Knowles shot and killed his ex-wife at her workplace. The grand jury indicted Knowles on charges of first-degree murder and aggravated assault. Knowles entered a plea to second-degree murder and aggravated battery. During the sentencing proceeding, Knowles presented the testimony of clinical psychologist Dr. Freid as to Knowles’s state of mind prior to the homicide. The trial court imposed sentence. Later, Knowles sought and was granted postconviction relief on his claim that trial counsel rendered ineffective assistance in failing to properly advise Knowles prior to the plea on matters concerning the duration of his sentence. The trial court vacated the conviction and sentence, and reinstated Knowles’s original plea of not guilty. Knowles went to trial on the original first-degree murder charge. See Knowles, 800 So.2d at 261. At the trial, the State called Dr. Freid to testify in its case-in-chief on the issue of premeditation. The defense objected, arguing that Dr. Freid’s testimony should be barred because it flowed directly from the defective plea that had been vacated. The court overruled the objection, and Dr. Freid testified that Knowles made plans to kill both his ex-wife and himself, was legally sane at the time of the offense, and knew his conduct was wrong. See id. at 261-62.

On appeal, the Second District concluded that the trial court erred in allowing the State to elicit testimony from the former defense witness, Dr. Freid. The Second District ruled that the trial court’s determination that the plea resulted from ineffective assistance rendered both the plea and the waiver of the privilege of confidentiality as to Dr. Freid’s examination of Knowles involuntary and therefore a nullity. See id. at 263. The district court also ruled that the constitutional privilege against self-incrimination protected Knowles from the unfair use of Dr. Freid’s previous testimony. See id. at 264. However, the court concluded that the error was harmless under Goodwin:

Goodwin mandates that the analysis must focus on how the error affects the trier of fact. Id. at 541. It would be inappropriate to uphold the jury verdict of guilty in this case by concluding that the permissible evidence alone would support the verdict. Instead, the conceptual framework for reviewing the record in its entirety is provided by the answer to the following question: “Do I, the judge, think that the error substantially influenced the jury’s decision?” Id. at 545 (quoting O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).
A review of the record has convinced this court that the error did not substantially influence the jury’s verdict and, therefore, upon the unique facts of this case, the error is harmless beyond a reasonable doubt.

Knowles, 800 So.2d at 264 (first emphasis added). Chief Judge Blue dissented, concluding that “[wjhere, as in this case, the primary issue is the defendant’s premeditation, I can think of nothing more harmful than the presentation of evidence of premeditation from the defendant’s psychologist.” Id. at 267 (Blue, C.J., dissenting).

In determining whether the Second District properly applied Goodwin, we briefly review our harmless error precedent beginning with State v. DiGuilio, 491 So.2d 1129 (Fla.1986). In DiGuilio, this Court held that an erroneous comment on a defendant’s constitutional right to remain silent requires reversal and remand for a new trial unless the appellate court can conclude beyond a reasonable doubt that the error did not affect the verdict. Id. at 1135, 1139. The Court set out the test to be applied in determining whether trial error in a criminal case is harmful:

The test is not a sufficiency-of the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. at 1139. Two years later, this Court reaffirmed the vitality of this test, holding that “reversal is mandated under ... DiGuilio ... when the state fails to demonstrate beyond a reasonable doubt that there is no reasonable possibility that the erroneous admission of collateral crime evidence affected the jury verdict.” State v. Lee, 531 So.2d 133, 134 (Fla.1988). We “decline[d] to modify the DiGuilio test to require only a showing that the permissible evidence would support the conviction in order to find the erroneous admission of improper collateral crime evidence harmless.” Id. at 136.

In Goodwin, the Court was called upon to determine whether section 924.051(7), Florida Statutes (Supp.1996), abrogated the DiGuilio harmless error test in cases involving nonconstitutional error. In answering a certified question, this Court held that the provision did not alter the obligation of the appellate courts to independently review both constitutional and nonconstitutional errors for harmlessness under the DiGuilio standard. See Goodwin, 751 So.2d at 537. The Court specifically stated that it had determined in Lee that “this Court retains the authority to determine the analysis to be applied in deciding whether an error requires reversal.” Id. at 542 (citing Lee, 531 So.2d at 136 n. 1).

Additionally, this Court in Goodwin emphasized the duty of a reviewing court to determine harmless error “regardless of any lack of argument on the issue by the state.” Id. at 545. After pointing to passages in Heuss v. State, 687 So.2d 823 (Fla.1996), that supported this view, we stated:

These observations of our Court are consistent with those of the United States Supreme Court. As Justice Breyer recently observed in explaining why a burden of persuasion is ill-suited to the appellate process:
The case before us does not involve a judge who shifts a “burden” to help control the presentation of evidence at a trial, but rather involves a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect. In such a case, we think it conceptually clearer for the judge to ask directly, “Do I, the judge, think that the error substantially influenced the jury’s decision?” than for the judge to try to put the same question in terms of proof burdens (e.g., “Do I believe the party has borne its burden of showing ... ?”)
O’Neal v. McAninch, 513 U.S. 432, 436-37, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).

751 So.2d at 545. This Court also stated:

Review of the record to ascertain whether the error is harmless is an essential and critical appellate function. For this reason, we hold that to shift the burden to the defendant would not only be an abdication of judicial responsibility, but could lead to the unjust result of an affirmance of a conviction even though the appellate court was not convinced beyond a reasonable doubt that the error did not affect the defendant’s conviction.

Id. at 546.

O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), did not involve the discussion of harmless error in a direct appeal. Instead, O’Neal was a federal collateral attack on a state court conviction that was final. The discussion from O’Neal was meant to exemplify the difficulty in a defendant meeting the burden of showing that an error substantially influenced the outcome. The excerpt from O’Neal used in Goodwin merely served as an example of a harmless error inquiry unfettered by the consideration of whether a particular party has or has not met a burden with regard to harmlessness. It was not intended to alter or supplant the DiGuilio standard in any way. This Court in Goodwin reiterated the applicability of the DiGuilio standard in direct appeals: “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id. at 541 (quoting DiGuilio, 491 So.2d at 1139). We explicitly held that reviewing courts must continue to follow the DiGuilio test:

Thus ... we conclude that once the defendant has satisfied the burden of demonstrating that error has occurred, the DiGuilio standard of harmless error remains the applicable analysis to be employed in determining whether the error requires a reversal on direct appeal.

Id. at 546.

With the exception of Knowles, the district courts have correctly enunciated and applied the DiGuilio standard since Goodwin. See, e.g., Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002); Kiner v. State, 824 So.2d 271, 273 (Fla. 4th DCA 2002); Coley v. State, 816 So.2d 817, 818-19 (Fla. 2d DCA 2002); Moore v. State, 798 So.2d 50, 53 (Fla. 1st DCA 2001); Cooper v. State, 778 So.2d 542, 545 (Fla. 3d DCA 2001). The Second District’s conclusion that the error in this case was harmless because it did not “substantially influence the jury’s verdict” is an unwarranted departure from the DiGuilio standard.

Because our use of the parenthetical quotation from O’Neal is the apparent source of the Second District’s misapplication of Goodwin, we reaffirm that Goodwin did not alter the test of harmless error and that the DiGuilio standard remains the benchmark of harmless error analysis. “The question is whether there is a reasonable possibility that the error affected the verdict,” DiGuilio, 491 So.2d at 1139, not whether the error substantially influenced the jury’s verdict. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

The Second District’s use of the incorrect “substantial influence” test leaves us uncertain whether the application of the DiGuilio test would have yielded a different result in the district court. Therefore, we quash the decision below and remand to the district court for reconsideration of whether the error is harmless in light of our reaffirmation in this case of the DiGuilio standard. Cf. Goodwin, 751 So.2d at 547 (remanding one of two consolidated cases to the district court to reconsider its erroneous harmless error determination).

In remanding, we also reject Knowles’s assertion that the erroneous admission of an expert witness’s testimony bearing on intent is per se harmful error. Although the admission of testimony in violation of a defendant’s attorney-client privilege and privilege against self-incrimination creates a high probability of harm, “[h]igh risk that an error will be harmful is not enough ... to justify categorizing the error as always harmful (per se).” DiGuilio, 491 So.2d at 1137. See also State v. Sehopp, 653 So.2d 1016, 1020 (Fla.1995) (stating that high probability that an error is harmful does not justify categorizing the error as reversible per se).

Finally, we decline to address any additional issues raised by the parties that are beyond the scope of the conflict issue. See Asbell v. State, 715 So.2d 258, 258 (Fla.1998) (declining to address additional issues raised during discretionary conflict review).

It is so ordered.

ANSTEAD, C.J., and LEWIS, QUINCE, and CANTERO, JJ., concur.

BELL, J., concurs in part and dissents in part with an opinion.

WELLS, J., dissents with an opinion.

BELL, J.,

concurring in part and dissenting in part.

If the harmless error question must be reached, I concur that this question must be remanded for reconsideration, applying the standard announced in Goodwin v. State, 751 So.2d 537 (Fla.1999). However, there is no need to reach the question of harmless error. Therefore, I, too, would affirm the district court on the basis of waiver pursuant to section 90.507, Florida Statutes (1993), as opined by Judge Green. Knowles v. State, 800 So.2d 259, 265 (Fla. 2d DCA 2001)(Green, J., concurring).

WELLS, J.,

dissenting.

My first preference would be to discharge jurisdiction. I have considerable doubt as to the constitutional underpinning of this Court’s “misapplication jurisdiction.” I do not find that concept or those words in article V, section 3(b), Florida Constitution.

Since the majority has taken this case, I again state my disagreement with the majority’s decision in Goodwin v. State, 751 So.2d 537 (Fla.1999), for the reasons stated in my dissent in Goodwin. I continue to believe that this Court should apply section 924.051(7), Florida Statutes, as written. Thus, I would allow the district court’s decision to stand in respect to harmless error.

Moreover, I would affirm the decision of the district court on the basis set out in the opinion of Judge Green.


author: PER CURIAM. PARIENTE, J., WELLS, J.,

text:
    Curtis HARVEY, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-1139.
    Supreme Court of Florida.
    June 12, 2003.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, Florida, for Respondent.
   PER CURIAM.

We have for review a decision of a district court of appeal on the following questions, which the court certified to be of great public importance:

Whether the concept of fundamental sentencing error, as discussed in Maddox v. State, 760 So.2d 89 (Fla.2000), applies to defendants who could have availed themselves of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.U0, and 9.600, 761 So.2d 1015 (Fla.1999).
Whether an appellant in the First District Court of Appeal, who could have availed himself of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015 (Fla.1999), had an obligation to raise his single subject challenge to the 1995 sentencing guidelines in the trial court, despite the existence of adverse precedent in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), in order to later obtain appellate relief based on Heggs v. State, 759 So.2d 620 (Fla.2000).

Harvey v. State, 786 So.2d 28, 32-33 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We combine the certified questions into one question as follows:

Wffiether an appellant in the First District Court of Appeal, who could have availed himself of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015 (Fla.1999), may raise his single subject challenge to chapter 95-184, Laws of Florida, as fundamental error for the first time on appeal notwithstanding precedent from the First District Court of Appeal in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), upholding the constitutionality of chapter 95-184, which was later overturned by the Florida Supreme Court during the briefing period.

FACTS

By information, it was alleged that Harvey, with premeditation, attempted to murder his wife Serena Simmons Harvey by shooting her on October 29, 1995. Harvey tendered and the court accepted a negotiated plea of guilty to the lesser included offense of aggravated battery. The agreement provided that Harvey would be adjudged guilty and placed on community control for two years, followed by probation for eight years during which time he was to have no contact with the victim. Harvey was sentenced according to the 1995 sentencing guidelines. On September 2, 1999, Harvey’s probation supervisor filed an affidavit alleging that he had breached the conditions of his probation in two respects: (1) changing his address without obtaining consent from his probation officer; and (2) violating the “no contact” special condition. The trial court found that Harvey had violated the “no contact” condition, revoked his probation, and sentenced him to nine years in state prison. The sentencing guidelines score sheet used at sentencing contained a total of 120 sentencing points, which corresponded to a recommended sentencing range of 69 months to 115 months in prison. Notice of appeal was timely filed on December 3,1999.

On February 10, 2000, appellate counsel for Harvey filed an initial brief in the First District Court of Appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Seven days later, on February 17, 2000, we issued our decision in Heggs v. State, 759 So.2d 620 (Fla.2000), holding that chapter 95-184, Laws of Florida, the 1995 sentencing guidelines under which Harvey was sentenced, violated the single subject provision of article III, section 6, of the Florida Constitution. This decision overruled the First District’s opinion in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), quashed, 760 So.2d 924 (Fla.2000), holding that chapter 95-184 did not violate the single subject rale.

In light of Heggs, Harvey’s appellate counsel filed a motion to withdraw his Anders brief and filed an amended initial brief on the merits arguing that Harvey was entitled to be resentenced pursuant to Heggs. The First District granted the motion on March 22, 2000, and the State filed its answer brief on April 14, 2000, acknowledging that Harvey was entitled to resentencing under Heggs, which became final on May 4, 2000. Thereafter, this Court issued its decision in Maddox v. State, 760 So.2d 89 (Fla.2000), on May 11, 2000, wherein we held that certain unpre-served sentencing errors were fundamental and could be addressed for the first time on appeal if they fell within the window period between the enactment of section 924.051(3), Florida Statutes (Supp. 1996), and the promulgation of the amended rules in Amendments to Florida Rules of Criminal Procedure S. 111(e) & S.800 & Florida Rules of Appellate Procedure 9.020(h), 9.IkO, & 9.600, 761 So.2d 1015 (Fla.1999), reh’g granted, 761 So.2d 1025 (Fla.2000)(hereinafter “Amendments II”). On February 20, 2001, the First District Court of Appeal issued its opinion in Harvey v. State, 786 So.2d 595 (Fla. 1st DCA 2001) (“Harvey I”), wherein the court relied upon Maddox and held that Harvey failed to preserve his single-subject argument under Heggs because neither trial nor appellate counsel sought relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b). Harvey timely filed a Motion For Rehearing, Motion For Certification, and a Motion For Rehearing En Banc, and the State filed a Motion For Clarification. On May 1, 2001, the district court issued an opinion denying rehearing, rehearing en banc, and the State’s request for clarification. See Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001) (on rehearing) (“Harvey II”).

ANALYSIS

In light of the Criminal Appeal Reform Act of 1996 (hereinafter the “Act”) and our amendments to rule 3.800(b) promulgated by Amendments II, we stated that the goal of the Act was “to ensure that all claims of error [were] raised and resolved at the first opportunity,” which was consistent with our policy “that sentencing errors should be handled by the trial courts at the earliest opportunity rather than on appeal or in the postconviction process.” Maddox v. State, 760 So.2d 89, 95 (Fla.2000). Thus, under the new rule 3.800(b)(2) of the Florida Rules of Criminal Procedure, if a notice of appeal has been filed, a motion to correct a sentencing error can also be filed in the trial court at any time until the filing of the first appellate brief. We anticipated that the changes to rule 3.800(b) would “eliminate the problem of unpreserved sentencing errors raised on direct appeal” by giving trial courts the opportunity to address and correct these errors. This would also eliminate the need for an appeal in many cases and reduce the number of postconviction motions related to sentencing and appeals therefrom resulting in the furtherance of judicial efficiency as well as ensuring the integrity of the judicial process. See Amendments II, 761 So.2d at 1019.

In Maddox we made allowances for those defendants who did not have the benefit of the amendment to rale 3.800(b):

The reason that courts correct error as fundamental despite the failure of the parties to adhere to procedural rules requiring preservation is not to protect the interests of a particular aggrieved party, but rather to protect the interests of justice itself. Thus, we conclude that for those defendants who did not have the benefit of our recently promulgated amendment to rule 3.800(b) in Amendments II, during this window period the appellate courts should continue to correct unpreserved sentencing errors that constitute fundamental error. To hold otherwise would neither advance judicial efficiency nor further the interests of justice.

Maddox v. State, 760 So.2d 89, 98 (Fla.2000) (citation omitted). We thereafter indicated what types of sentencing errors could be addressed on appeal for the first time during the window period. See Maddox, 760 So.2d at 99-110. Our decision in Maddox advances the concept that fundamental sentencing error does not apply to defendants who could have availed themselves of the amendments to rule 3.800(b) as set forth in Amendments II; however, this concept does not trump fairness and due process and should not be used as a trap.

Harvey argues that to require him to raise a single subject challenge to chapter 95-184, Laws of Florida, by filing a motion to correct sentencing error pursuant to the amended rule 3.800(b) would have been a useless act because at the time that he filed his first appellate brief on February 10, 2000, the First District Court of Appeal’s opinion in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), was binding precedent. See Pardo v. State, 596 So.2d 665 (Fla.1992) (holding that district court decisions are binding upon Florida trial courts). The First District held on rehearing that because Harvey was on notice that this Court had accepted jurisdiction to review the single subject challenge to chapter 95-184, Laws of Florida, in Heggs v. State, 718 So.2d 263 (Fla. 2d DCA), review granted, 720 So.2d 518 (Fla.1998), his filing of a rule 3.800(b)(2) motion would not have been senseless because it would have preserved the issue. See Harvey II, 786 So.2d at 30-31.

We agree with Harvey that he should not be penalized for his appellate counsel’s failure to file a rule 3.800(b)(2) motion based on speculation that our opinion in Heggs would disapprove the First District’s decision in Trapp. Harvey had no sentencing error to complain of at the time he filed his Anders brief on February 10, 2000. We issued our decision in Heggs a week later, which created a unique situation — a sentencing error developed that did not exist before the first brief was filed. In light of Heggs, Harvey then filed a motion to withdraw his Anders brief and filed an initial brief on the merits raising the Heggs issue two weeks later, notwithstanding the fact that the procedural rules promulgated in Amendments II were applicable to him. Due to the interests of justice, judicial efficiency, and the unique circumstances of this case, we permit Harvey to raise his Heggs error as a fundamental sentencing error for the first time on appeal. Accordingly, we vacate the sentence imposed in this case and remand this cause for resentencing in accordance with the laws in effect on October 29,1995, the date on which Harvey committed his original offense.

We therefore quash the decision of the district court of appeal and answer the certified question in the affirmative for the limited purpose expressed herein.

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS and QUINCE, JJ., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs specially with an opinion, in which ANSTEAD, C.J., concurs.

WELLS, J., dissents with an opinion, in which CANTERO, J., concurs.

PARIENTE, J.,

specially concurring.

I concur in the majority opinion, and write separately to discuss Justice Wells’ concern that this decision “starts again down the path of exception” to the requirement that sentencing error be preserved. Dissenting op. at 1069. I do not share this concern because in my view, this case is not about “sentencing error” as the term has been used in our recent opinions, and therefore should not be seen as the start of a trend toward allowing unpreserved sentencing errors to be addressed when raised for the first time on appeal. Instead, this case concerns the facial invalidity of a statute negatively impacting the defendant’s due process liberty interest, a species of error that we have consistently addressed as a constitutional issue.

To help explain the crucial distinction between a claim of “sentencing error” and an assertion that a sentencing statute is unconstitutional on its face, I briefly review the birth and growth of rule 3.800(b). The rule stems from the Criminal Appeal Reform Act of 1996 (“CARA”). As part of CARA, the Legislature enacted section 924.051, Florida Statutes, which provides in part:

An appeal may not be taken from a 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. 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.

§ 924.051(3), Fla. Stat. (Supp.1996). Thus, CARA recognized that fundamental error could still be corrected on direct appeal, even if not properly preserved. Before CARA, this Court had authorized correction of many sentencing errors on direct appeal, even absent an objection, and often without distinguishing fundamental from non-fundamental error. See Maddox v. State, 760 So.2d 89, 99 (Fla.2000). Concerned that the provisions of CARA would foreclose relief from many sentencing errors previously addressed by the appellate courts, this Court adopted rule 3.800(b), which provides defendants an opportunity to file a motion to correct sentencing error within the thirty-day period for filing a notice of appeal. See Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1105 (Fla.1996) (Amendments I).

We stated in Amendments I that “[because many sentencing errors are not immediately apparent at sentencing, we felt that this rule would provide an avenue to preserve sentencing errors and thereby appeal them.” Id. We also adopted Florida Rule of Appellate Procedure 9.140(d), which requires that sentencing errors be preserved either through objection at the time of sentencing or by motion under rule 3.800(b). See id. at 1131.

In response to continuing concerns over the difficulty of discerning and moving to correct sentencing errors within the time specified in Amendments I, this Court adopted rule 3.800(b)(2), which authorizes the filing of a motion to correct sentencing error during the appeal, up to the point at which the party’s first brief is filed and served. See Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.14.0 & 9.600, 761 So.2d 1015, 1018 (Fla.2000) (Amendments II). We explained that rules 3.800(b)(1) and (2) were intended to provide “an opportunity to identify any sentencing errors and a method to correct these errors and preserve them for appeal.” Id. at 1018. Accordingly, we stated that the rule requires the movant to “propose how the trial court should correct the error.” Id. We further stated:

The comments to the proposed rule state that “trial courts and counsel are strongly encouraged to cooperate to resolve these motions as expeditiously as possible because they delay the appellate process.” Trial courts thus have the opportunity to address and correct sentencing errors, which might eliminate the need for an appeal in many cases and also reduce the number of postcon-viction motions related to sentencing and appeals therefrom.
Any delay to the appellate process caused by these amendments will be more than offset by the fact that the parties will now be given a workable procedure to correct these sentencing errors in the trial court before the appeal and to preserve these errors for appellate review. This early correction of these sentencing errors will further the goal of judicial efficiency as well as ensure the integrity of the judicial process.

Id. at 1018-19.

The interim between the effective date of the Act and our adoption of rule 3.800(b)(2) led to our decision in Maddox. There we held that appellate courts should correct “as fundamental error those serious, patent sentencing errors that have been brought to the courts’ attention through the issues raised on appeal” during the window period between the enactment of the Act and the opinion in Amendments II, even if the error had not been preserved below by objection or motion under rule 3.800(b). Maddox, 760 So.2d at 110. We specified that the sentencing errors cognizable when raised initially on appeal during the Maddox window period include sentences exceeding the statutory maximum, improper habitualization, score-sheet errors that impact the length of incarceration, written orders that deviate from the oral pronouncement and thereby either increase the length of incarceration or incorrectly adjudicate the defendant guilty of an offense, and erroneous guidelines departure sentences. Id. at 101-07.

Separate from these standard types of sentencing errors, which are capable of being addressed and even “corrected” in the trial court, are facial attacks on the constitutional validity of sentencing statutes. For example, in State v. Johnson, 616 So.2d 1, 3-4 (Fla.1993), we held that an unconstitutional amendment to the habitual offender statute could be attacked for the first time on appeal because it concerned a “facial challenge to a statute’s constitutional validity” that did not involve any factual application, and because the unconstitutional statute affected Johnson’s due process liberty interest, making its application fundamental error. Id. at 3-4. In Heggs v. State, 759 So.2d 620, 624 (Fla.2000), we concluded that “under this Court’s reasoning in Johnson,” the facial invalidity of the 1995 amendments to the sentencing guidelines could be addressed when the constitutional challenge was raised for the first time on appeal.

In considering the purpose for the adoption of rule 3.800(b), which is to provide a mechanism to raise and preserve all sentencing errors whether fundamental or not, I conclude that facial challenges to unconstitutional sentencing statutes do not involve sentencing errors that in all cases must be raised for the first time by an objection during sentencing or a motion to “correct sentencing error” pursuant to rule 3.800(b). I would therefore hold that, in cases in which there is no controlling precedent supporting the appellant’s position at the time his or her first brief is filed in the appeal, a facial challenge to a sentencing statute may be raised initially on appeal as fundamental error in cases in which the allegedly defective statute is used to increase the sentence beyond that which would otherwise be authorized. I include the qualifying language because, in cases in which there is controlling precedent from this Court or a district court declaring the statute unconstitutional, the interests of justice and judicial efficiency weigh in favor of requiring that the issue be raised via timely objection or motion at the trial court level, where it may be resolved without the necessity of an appeal.

Under this test, the Heggs issue raised by Harvey in his direct appeal should be addressed even though Harvey did not first raise the issue in the trial court. In this case, the sentence imposed on Harvey pursuant to the facially unconstitutional guidelines amendments identified in Heggs resulted in a sentence of 9 years in prison, which exceeded the guidelines range of 4.875 years to 8.125 years in prison under the valid version of the guidelines in effect at the time of the commission of the crime. Harvey is therefore entitled to resentenc-ing under Heggs. See 759 So.2d at 630.

As suggested by the majority, on these facts a rule 3.800(b)(2) motion would not have served the interests of justice or judicial economy. The trial court would have been compelled to deny the motion, which “must be served before the party’s first brief is served.” As pointed out in the majority opinion, at the time that Harvey’s first brief was filed, the First District had ruled that the 1995 guidelines amendments were constitutional, creating binding precedent for the trial court. See majority op. at 1063. Therefore, both because a facial challenge to the constitutionality of a sentencing statute involves a pure question of law rather than the erroneous application of a sentencing statute, and because controlling precedent foreclosed relief at the time that the first brief was filed, requiring a motion to correct sentencing error under rule 3.800(b)(2) as a prerequisite to challenging the facial constitutionality of the statute in this case would not serve the purposes for which rule 3.800(b)(2) was adopted.

Finally, I note that in Brannon v. State, 850 So.2d 452, 2003 WL 21354797 (Fla. June 12, 2003), also decided today, we hold that the failure to contest the improper imposition of habitual offender sentences in the trial court barred appellate review of these issues, which could have been raised in a rule 3.800(b) motion. The issues in Brannon, unlike this case, do not concern the facial constitutionality of the statute under which the defendant was sentenced, and are not issues on which controlling law was contrary to the defendant’s assertion of sentencing error at the time the initial brief was filed. In tandem with Maddox, Brannon should be viewed as setting forth the rule in this area of the law.

The exception we recognize in Harvey is quite narrow. As the author of the majority opinions in Maddox and Amendments II, I would not want the majority opinion in this case, and my concurrence in it, to be mistaken for the first step in the “path of exception” to which Justice Wells refers.

ANSTEAD, C.J., concurs.

WELLS, J.,

dissenting.

I dissent. I would answer “yes” to the questions certified by the district court. I would answer “no” to the question as rephrased by the majority.

The question presented in this case is whether we are going to adhere to the comprehensive procedural rules for review of alleged sentencing errors adopted by this Court in its rule amendment cases in Amendments to Florida Rules of Appellate Procedure, 696 So.2d 1103 (1996) (Amendments I), and Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.110, and 9.600, 761 So.2d 1015 (Fla.1999) (Amendments II), and the plain statements made by this Court in Maddox v. State, 760 So.2d 89 (Fla.2000). I do not concur with the majority’s answer to the rephrased certified question because the majority rejects adherence to both the Amendments and Maddox decisions, and sets upon a course of finding “exceptions.” This is precisely the course which Maddox expressly stated would not be taken after Maddox.

I do not know how Florida Rule of Appellate Procedure 9.140(e) could be more clearly stated.

(e) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has been brought to the attention of the lower tribunal:
(1) at the time of sentencing; or
(2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).

(Emphasis added.)

In 1996, this Court specifically dealt with the implementation of this procedure:

Applying this rationale to the amendment of section 924.051(3), we believe the legislature could reasonably condition the right to appeal upon the preservation of a prejudicial error or the assertion of a fundamental error. Anticipating that we might reach such a conclusion, this Court on June 27, 1996, promulgated an emergency amendment designated as new Florida Rule of Criminal Procedure 3.800(b) to authorize the filing of a motion to correct a defendant’s sentence within ten days. Amendments to Florida Rule of Appellate Procedure 9.020(g) & Florida Rule of Criminal Procedure 3.800, 675 So.2d 1374 (Fla.1996). Because many sentencing errors are not immediately apparent at sentencing, we felt that this rule would provide an avenue to preserve sentencing errors and thereby appeal them. However, since our adoption of the emergency amendment, a number of parties have expressed the view that the ten-day period is too short. They say that because of the copying process in the clerk’s office or for other reasons, attorneys often do not timely receive copies of the sentencing orders. Others point out that as a result of the short time period, many public defenders are ordering expedited transcripts of the sentencing hearing at additional cost to the State. For these reasons, we have extended the time for filing motions to correct sentencing errors under rule 3.800(b) to thirty days.

Amendments I, 696 So.2d at 1105.

In 1999, in this Court’s Amendments II opinion, this Court expanded the time within which claims of sentencing errors could be presented to the trial court by adopting revisions to rule 3.800(b). We also set out in the 1999 Amendments II opinion how rules 3.800(b) and 3.800(a) were to work.

Thus, a party can correct an illegal sentence through a rule 3.800(b) motion, or alternatively, following the appeal, a party may file a 3.800(a) motion to correct the sentence in the trial court.

Amendments II, 761 So.2d at 1019.

In Maddox, this Court recognized the preclusive plain language of rule 9.140, but because the limitation of time in the 1996 rule 3.800(b) had been expanded in the 1999 rule 3.800(b), this Court adopted a “window period” in which rule 9.140(e) would not be given its plain effect. But this Court also recognized that when the window shut, rule 9.140(e) was to be given its full effect.

[W]e conclude that for those defendants who did not have the benefit of our recently promulgated amendment to rule 3.800(b) in Amendments II, during this window period the appellate courts should continue to correct unpreserved sentencing errors that constitute fundamental error.

Maddox, 760 So.2d at 98 (emphasis added). In Salters v. State, 758 So.2d 667 (Fla.2000), this Court likewise made it clear that the very type of error asserted in the present case had to be presented in the trial court after the window shut.

There is no doubt here that this is a post window-shutting appeal. The majority does not contest this. Rather, the majority embarks on the exception course by reasoning that “Harvey had no sentencing error to complain of at the time he filed his Anders brief on February 10, 2000.” Majority op. at 1063. Clearly though, as stated in Judge Wolfs opinion, this is wrong since the Heggs issue was being reviewed by this Court at that time. To the contrary, there was no reason that the issue could not and should not have been presented to the trial court, if appellant intended to preserve it, in view of the clear language of rule 9.140(e), which stated that it had to be presented, and rule 3.800(b), which provided the procedural mechanism by which an allegation of error was to be presented.

The contemplation of the procedural scheme at the time of the Amendments II decision was that if the rules were not followed, then a defendant’s recourse was through postconviction. This is what this Court said. There is simply no question that this was the decision made at that time in part because of the confusion which resulted from this Court and the district courts making ad hoc exceptions to the rules. The majority here errs when it is confronted with the tension on this unequivocal decision and it starts again down the path of exception.

CANTERO, J., concurs.

      .Section 924.051(3), Florida Statutes (Supp. 1996), reads as follows:
      An appeal may not be taken from a 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. 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.

      . Likewise, "the primary goal of [Amendments II was] to ensure that sentencing errors will be corrected at the earliest possible opportunity by the trial court.” Amendments II, 761 So.2d at 1020.

      . Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure states in relevant part: "If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served.”

      . Maddox, 760 So.2d at 94.

      . Now designated rule 3.800(b)(1).

      . Now designated rule 9.140(e).

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Heggs v. State, 759 So.2d 620 (Fla.2000).