Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ANTHONY JESSE LAMBERSON, ) ) Petitioner, ) ) v. ) Case No. 2D20-2805 ) STATE OF FLORIDA, ) ) Respondent. ) ___________________________________) Opinion filed May 7, 2021. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Chris Helinger, Judge. Anthony Jesse Lamberson, pro se. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent. LABRIT, Judge. Anthony Jesse Lamberson has filed a petition in accordance with Florida Rule of Appellate Procedure 9.141(d), arguing that his appellate counsel was ineffective for failing to file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to preserve the issue of the illegality of his sentence. We agree that appellate counsel was ineffective in this regard and conclude that Lamberson is entitled to a new direct appeal. In 2017, Lamberson entered a negotiated guilty plea to three counts of obtaining property in return for a worthless check (more than $150) and one count of uttering a worthless check (less than $150) in exchange for a sentence of 120 days in jail and a one-week furlough before sentencing. Lamberson failed to appear for sentencing. At an evidentiary hearing, the trial court found that Lamberson willfully failed to appear and that he had committed the new crimes of grand theft auto and providing a false name to a law enforcement officer. The court sentenced Lamberson to concurrent terms of sixty months' imprisonment for the three third-degree felonies and to time served for the misdemeanor. We affirmed Lamberson's judgments and sentences. Lamberson v. State, 256 So. 3d 174 (Fla. 2d DCA 2018) (table decision). Lamberson's scoresheet showed a total of eighteen points. Section 775.082(10), Florida Statutes (2017),1 provided: If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section. 1The current version of subsection 775.082(10) remains unchanged. § 775.082(10), Fla. Stat. (2020). -2- In sentencing Lamberson to five years' imprisonment on his third-degree felony convictions, the trial court made no findings that a non-state prison sanction could present a danger to the public. Lamberson argues that he made appellate counsel aware of the possibility that his sentence was illegal because of the absence of dangerousness findings and that counsel was ineffective for failing to preserve the issue of the legality of his enhanced sentence in the absence of those findings. See Fortner v. State, 23 So. 3d 1275, 1276 (Fla. 2d DCA 2010) (stating that a claim that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct a sentence that is not authorized by law is cognizable in a petition filed under rule 9.141(d)); see also Simmons v. State, 205 So. 3d 793, 794 (Fla. 2d DCA 2016) ("If counsel had filed a rule 3.800(b)(2) motion to correct sentencing error and preserved this issue for review, this court would have been compelled to reverse Simmons' sentence."). He argues that if the issue had been preserved, the result of his appeal would have been different. See Valle v. Moore, 837 So. 2d 905, 907 (Fla. 2002) (stating that the standard of review applicable to claims of ineffective assistance of appellate counsel mirrors the Strickland v. Washington, 466 U.S. 668 (1984), standard for claims of ineffective assistance of trial counsel). The State argues that Lamberson cannot show prejudice because he waived the requirement for a written finding of dangerousness under section 775.082(10) when he agreed that any violation of his agreement with the court would subject him to a potential maximum sentence of fifteen years. But it is difficult to say that Lamberson waived the finding because "[t]he colloquy does not address section -3- 775.082(10)'s starting point that a maximum sentence, absent a finding of dangerousness, cannot be prison time. And it is beyond cavil that a criminal defendant cannot agree to an illegal sentence." Lamberson v. State, 46 Fla. L. Weekly D364a, D364 (Fla. 2d DCA Feb. 12, 2021) (LaRose, J., concurring) (affirming appeal of order denying rule 3.800(a) motion). The State also argues that even if Lamberson did not waive the finding, any error from the absence of the finding is harmless because the record supports a finding of economic dangerousness in that he passed worthless checks and stole a car while on furlough. See Johnson v. State, 260 So. 3d 502, 506 (Fla. 1st DCA 2018) ("[A] danger to the public does not require a history of violence and can be based on economic or other types of harm." (quoting Jones v. State, 71 So. 3d 173, 176 (Fla. 1st DCA 2011))), disapproved of on other grounds by Casiano v. State, 310 So. 3d 910, 916 (Fla. 2021); McCloud v. State, 55 So. 3d 643, 645 (Fla. 5th DCA 2011) (affirming a prison sanction imposed under section 775.082(10) for two counts of felony petit theft because the crimes created "a threat to property" and led to "police resources [being] diverted . . . [which] also potentially endanger[ed] the public," making the defendant a "danger to the public"). This argument leads us to the reason for granting Lamberson a new appeal. This court applies the law in effect at the time of the appeal to determine whether counsel's performance was deficient, but we apply current law to determine whether the petitioner is entitled to relief. See Horne v. State, 128 So. 3d 953, 956 (Fla. 2d DCA 2013) (citing Brown v. State, 25 So. 3d 78, 80 (Fla. 2d DCA 2009)). At the time of Lamberson's direct appeal, "the supreme court held that when a trial court fails to -4- provide written reasons for an upward departure sentence under section 775.082(10) or when the reasons the trial court provides are found to be invalid on appeal, the trial court must impose a nonstate prison sanction on remand." Rodriguez-Aguilar v. State, 198 So. 3d 792, 797 (Fla. 2d DCA 2016) (citing Bryant v. State, 148 So. 3d 1251, 1258– 59 (Fla. 2014)). However, less than two weeks after the mandate issued in Lamberson's direct appeal, the supreme court held that section 775.082(10) was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), because it required the judge rather than a jury to make the finding of dangerousness. See Brown v. State, 260 So. 3d 147, 150 (Fla. 2018). The court held that "[i]n order for a court to impose any sentence above a nonstate prison sanction when section 775.082(10) applies, a jury must make the dangerousness finding." Id. at 151. Thus, the remedy to which Lamberson is entitled depends on whether Brown, 260 So. 3d 147, applies retroactively. Because that issue has not been decided by this court or the Florida Supreme Court,2 we believe that Lamberson is entitled to legal representation to argue the issue. Accordingly, we grant Lamberson's petition to the extent that we allow him a new appeal limited to the issue of the retroactivity of Brown, 260 So. 3d 147. This opinion will serve as a timely notice of appeal from the judgment and sentence in case number 17-CF-142 imposed on October 13, 2017. The circuit court clerk shall treat this opinion as a notice of appeal and shall promptly certify it and return it to this court as with any notice of appeal, and a new appellate case number will be assigned to this 2The Fifth District has held that Brown does not apply retroactively. See Adams v. State, 289 So. 3d 958, 961–62 (Fla. 5th DCA 2020). -5- appeal and an acknowledgement letter will issue at that time. The clerk shall then prepare the record in accordance with Florida Rule of Appellate Procedure 9.200. Within twenty days, the trial court shall appoint appellate counsel to represent Lamberson. Counsel's briefs shall be served in accordance with rule 9.210(f). Petition granted. CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur. -6-