Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-255 _____________________________ HEATH L. KRAMER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge. March 10, 2021 ROWE, J. Heath L. Kramer appeals his convictions and sentences for two counts of sexual battery, lewd or lascivious molestation, two counts of possession of a controlled substance, and possession of drug paraphernalia. Based on our independent review of the record, we agree with appointed counsel that the record reveals no basis for reversal. See Anders v. California, 386 U.S. 738 (1967). Facts In 2018, a law enforcement officer pulled his vehicle behind a white pick-up truck stopped on the side of the road. The officer did not see anyone inside the truck at first. He ran the tags and approached the truck. He then observed Kramer and the victim in the front seat with their pants down. Kramer opened the truck door, and the officer saw a glass pipe, which he recognized as drug paraphernalia. Because of her appearance, the officer asked the victim her age; she responded that she was thirteen years old. When the officer asked how she knew Kramer, she said that he was her stepfather. The officer placed Kramer under arrest. The victim was taken to the hospital for a sexual assault examination. When an officer interviewed the victim at the hospital, she reported that she and Kramer went to the store that day. On the way home, Kramer pulled the truck over to the side of the road. Kramer slid over next to her in the front seat, he removed the victim’s pants and underwear, and he penetrated her vagina with his tongue and fingers. The victim estimated that the assault lasted around fifteen minutes. Based on the victim’s report and the evidence from the crime scene, the State charged Kramer with two counts of sexual battery while in a position of familial or custodial authority, lewd or lascivious molestation on a victim over twelve but under sixteen years, possession of cocaine, possession of drug paraphernalia, and possession of methamphetamine. His scoresheet provided for a lowest permissible sentence of 16.4 years in prison. Kramer entered an open plea to all charges. At the sentencing hearing, Kramer asked the court to consider that his prior criminal record consisted only of two misdemeanors, that he was a victim of sexual abuse when he was a child, and that he has a drug and alcohol addiction. The victim’s father also testified. He recounted that the victim has nightmares and often starts crying at random. He testified that the victim wanted the trial court to sentence Kramer to life without parole. The victim’s grandmother also testified to the harm that Kramer had done to her family. She asked the court to impose consecutive prison sentences. Defense counsel argued for more lenient sentencing. Counsel asked the trial court to impose the lowest permissible sentence or a sentence of lifetime probation. He argued that Kramer had no prior record of serious crimes. And the assault on the victim was an isolated event committed in an unsophisticated manner for which Kramer had shown remorse. Counsel also asked the court 2 to consider that Kramer entered a plea, so the victim did not have to testify at trial, and the State avoided the time and expense of a trial. Even so, the State asked the court to impose a sentence of at least twenty-five years in prison. The court followed the State’s recommendation and imposed these concurrent sentences: twenty-five years in prison followed by ten years of sex offender probation for the two sexual battery counts; fifteen years in prison for lewd or lascivious molestation; five years in prison for possession of cocaine; time served for possession of drug paraphernalia; and five years in prison for possession of methamphetamine. The court also designated Kramer as a sexual predator and as a sexual offender. After sentencing, Kramer moved under Florida Rule of Criminal Procedure 3.800(c) to reduce his sentence. He raised the same arguments he raised at sentencing for a more lenient sentence. The court denied the motion without comment. Kramer sought and was granted a belated appeal of his convictions and sentences. Analysis In this Anders appeal, Kramer’s counsel was unable to point to any reversible errors on direct appeal. Still, she suggested that Kramer may have a potential ineffective assistance of counsel claim for counsel’s failure to file a motion to withdraw Kramer’s plea. Kramer filed a pro se brief and identified two potential errors. He argued that his convictions for sexual battery and lewd or lascivious molestation violated double jeopardy because they occurred within the same criminal episode. And he argued that an error in the sentencing process occurred when the trial court made a remark about another defendant’s sentence during the sentencing hearing. We reject both arguments and affirm Kramer’s judgment and sentence for the following reasons. A defendant may appeal an issue following a no contest or guilty plea only when the issue is expressly reserved and legally dispositive. §§ 924.051(4); 924.06(3), Fla. Stat. (2017). Despite the 3 statutory limitations on a criminal defendant’s ability to appeal after a plea, a limited class of issues remain appealable. See Amendments to Fla. R. of App. P., 685 So. 2d 773, 775 (Fla. 1996). These include: (a) the lower tribunal’s lack of subject matter jurisdiction, (b) a violation of the plea agreement, (c) an involuntary plea, (d) a sentencing error, or (e) as otherwise provided by law. Fla. R. App. P. 9.140(b)(2)(A)(ii). As to the third issue, when a defendant alleges that the plea was involuntary, he must move to withdraw the plea to preserve the issue for appeal. See id.; Williams v. State, 821 So. 2d 1267, 1268-69 (Fla. 2d DCA 2002). Kramer did not reserve any issue for appeal. And he did not move to withdraw his plea—although he alleged in his belated appeal petition that he asked counsel to file such a motion. But counsel attested that he advised Kramer against withdrawing the plea because he thought the State would seek a harsher sentence after trial. Counsel also believed that a motion to withdraw the plea as involuntary would have been frivolous. We agree. See Tubbs v. State, 229 So. 3d 1256, 1258 (Fla. 1st DCA 2017). The record shows that the trial court conducted a plea colloquy that substantially complied with the requirements of Florida Rule of Criminal Procedure 3.172(c). The court informed Kramer of the maximum sentence for each offense, including that he could receive life sentences on the first two counts. Kramer affirmed that he understood that the trial court would designate him as a sexual predator on the sexual battery counts and as a sexual offender on the lewd or lascivious molestation count. The trial court explained that under the Jimmy Ryce statutes, the State could seek to civilly commit Kramer even after he completed his prison sentence. Kramer affirmed that he was aware of that possibility and still wanted to enter a plea. Based on Kramer’s responses to the court’s questions, the court did not err by accepting his plea as knowingly and voluntarily entered. As to Kramer’s double jeopardy claim, under some circumstances, such a claim may be reviewable even when the defendant did not reserve the issue when entering his plea. See Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994). Those circumstances are not present here, and no double jeopardy 4 violation appears on the face of the record. See id. Kramer’s convictions for two counts of sexual battery and one count of lewd or lascivious molestation do not violate double jeopardy. See Roughton v. State, 185 So. 3d 1207, 1208 (Fla. 2016) (holding that convictions for capital sexual battery and lewd or lascivious molestation, based on a single act, did not violate double jeopardy). Kramer’s two convictions for sexual battery also do not violate double jeopardy because there were two separate criminal acts. See State v. Meshell, 2 So. 3d 132, 136 (Fla. 2009) (holding that dual convictions under the lewd or lascivious battery statute for oral sex and vaginal penetration did not violate double jeopardy). As to Kramer’s sentences, none exceed the applicable statutory maximum. Kramer’s convictions for two counts of sexual battery by a person in familial or custodial authority are life felonies punishable by up to life in prison. §§ 794.011(8)(b), 775.082(3)(a), Fla. Stat. (2017). But the trial court did not sentence Kramer to life. Instead, the court sentenced Kramer to twenty-five years in prison, followed by ten years of sex offender probation. As to Kramer’s conviction for lewd or lascivious molestation of a child between the ages of twelve and sixteen, this is a second-degree felony punishable by up to fifteen years in prison. §§ 800.04(5)(c)2., 775.082(3)(d), Fla. Stat. (2017). The trial court sentenced Kramer to fifteen years in prison. As to Kramer’s convictions for possession of a controlled substance, those are third-degree felonies punishable by up to five years in prison. §§ 893.13(6)(a), 775.083(3)(e), Fla. Stat. (2017). The trial court sentenced Kramer to five years in prison for those offenses. Last, as to Kramer’s conviction for possession of drug paraphernalia, this is a first- degree misdemeanor punishable by up to one year in jail. §§ 893.147(1), 775.082(4)(a), Fla. Stat. (2017). The trial court sentenced Kramer to time served. Though his sentences do not exceed the applicable statutory maximum and even though he received only twenty-five-year concurrent prison terms for his life felonies, Kramer still sought a downward departure sentence. The trial court denied his request. That ruling is not subject to appellate review here because the trial court understood its discretion to downwardly depart, but declined to do so. See Wilson v. State, 45 Fla. L. Weekly D2615 (Fla. 1st DCA Nov. 20, 2020). 5 Still, Kramer raises an alleged error in the sentencing process. He asserts that when it imposed his sentence, the trial court impermissibly considered a sentence imposed on an offender in another, unrelated case. Before imposing Kramer’s sentence, the trial court observed: “Interesting that if you look at his scoresheet and Yablonski (phonetic) they pretty much s[ay] almost the same thing, and while what Mr. Yablonski did was bad, frankly this one exceeds that.” But Kramer’s counsel did not object to the trial court’s observation. And so, Kramer must show that it amounted to fundamental error. See Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008) (holding that an appellant may raise unpreserved sentencing errors on direct appeal only under the fundamental error standard). He cannot make this showing. Trial courts have wide discretion when imposing sentences. Provence v. State, 337 So. 2d 783, 786 (Fla. 1976). This discretion includes “providing explanations at sentencing to support the reasonableness and legitimacy of its decision to both the public and to the reviewing court.” Goldstein v. State, 154 So. 3d 469, 476 (Fla. 2d DCA 2015). Trial courts may “consider prior cases when seeking to impose a proper sentence.” Id. Here, the trial court made an isolated remark comparing Kramer’s scoresheet with that of a previous defendant. The court did not consider any impermissible factor when imposing Kramer’s sentence, and its isolated remark did not amount to error, much less fundamental error. Finally, after sentencing, Kramer sought a reduction of his sentence by postconviction motion. The trial court’s discretionary ruling on that motion is not subject to appellate review. See Baez v. State, 116 So. 3d 1278, 1278 (Fla. 1st DCA 2013) (holding that merit determinations of rule 3.800(c) motions are not reviewable). For these reasons, we AFFIRM. M.K. THOMAS and NORDBY, JJ., concur. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant; and Heath L. Kramer, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 7