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, ) ) Appellant, ) ) v. ) Case No. 2D20-293 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed February 12, 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 Appellee. PER CURIAM. Affirmed. BLACK and LUCAS, JJ., Concur. LaROSE, J., Concurs with opinion. LaROSE, Judge, Concurring. Anthony Jesse Lamberson appeals the order denying his postconviction motion. See Fla. R. Crim. P. 3.800(a). I concur in the court's decision to affirm. Based on the issue framed by Mr. Lamberson before the postconviction court, I conclude that the postconviction court properly denied relief. However, my review of our limited record leaves me unsettled. Mr. Lamberson may, indeed, be serving an illegal sentence, despite his unsuccessful attempt to convince the postconviction court or this court otherwise. Some background is necessary. Mr. Lamberson, in exchange for a sentence of 120 days in jail and a one-week furlough before sentencing, pleaded guilty 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). Mr. Lamberson did not appear for sentencing and was later arrested. After an evidentiary hearing, the trial court found that Mr. Lamberson had failed to appear for sentencing and had committed new crimes. The trial court sentenced Mr. Lamberson to concurrent terms of five years' imprisonment for the third-degree felony convictions and to time served for the misdemeanor. We affirmed on direct appeal. Lamberson v. State, 256 So. 3d 174 (Fla. 2d DCA 2018) (table decision). Relying on Brown v. State, 260 So. 3d 147 (Fla. 2018), Mr. Lamberson told the postconviction court that his five-year sentences were illegal because his scoresheet reflected a total of eighteen points, and a jury made no finding that a -2- non-state prison sanction could present a danger to the public.1 Section 775.082(10), Florida Statutes (2016), states as follows: 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. The postconviction court denied Mr. Lamberson's motion, reasoning that he waived his right to a jury finding when he pleaded: [B]y acknowledging the Court's recitation of the maximum potential sentence if he failed to appear, Defendant effectively waived his right to have the facts necessary to enhance his sentence beyond the statutory maximum be found by a jury and stipulated that he could face any sentence up to 15 years. As I read the plea colloquy between Mr. Lamberson and the trial court, I am not convinced that Mr. Lamberson waived his rights. The colloquy does not address section 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. See Parks v. State, 223 So. 3d 380, 383 (Fla. 2d 1In Brown, the supreme court explained "that [section 775.082(10), Florida Statutes (2015),] unambiguously sets the statutory maximum penalty, for Apprendi[ v. New Jersey, 530 U.S. 466 (2000),] purposes as defined by Blakely[ v. Washington, 542 U.S. 296 (2004)], as 'a nonstate prison sanction.' " Brown, 260 So. 3d at 150 (quoting § 775.082(10)); see Blakely, 542 U.S. at 303 (defining a statutory maximum sentence as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant"). -3- DCA 2017) (holding that a defendant may challenge a sentence that exceeds the statutory maximum, even if the result of a negotiated plea, at any time under rule 3.800(a)); Archer v. State, 45 Fla. L. Weekly D2841, D2844 (Fla. 5th DCA Dec. 18, 2020) ("A defendant cannot agree to an illegal sentence." (citing Wilson v. State, 752 So. 2d 1227, 1229 (Fla. 5th DCA 2000))). Moreover, no one—judge or jury—made any findings of dangerousness.2 At this juncture, however, Mr. Lamberson is not entitled to relief. Brown, upon which Mr. Lamberson relies, issued after his judgment and sentences became final. Obviously, the State has an interest in finality. And based on the record before us, I am not prepared to find that Brown applies retroactively. See Reed v. State, 192 So. 3d 641, 644 n.2 (Fla. 2d DCA 2016) ("This is not the first time Apprendi[ v. New Jersey, 530 U.S. 466 (2000),] concerns have arisen in relation to section 775.082(10)."). But cf. Adams v. State, 289 So. 3d 958, 961 (Fla. 5th DCA 2020) (holding the right to a jury finding explained in Brown is new law that does not apply retroactively to Mr. Adams's case, which had been final for more than five years before Brown issued). What gnaws at me is that absent a finding of dangerousness, the statutory maximum sentences for Mr. Lamberson's third-degree felony convictions are non-state prison sanctions. See § 775.082(10). But Mr. Lamberson did not raise the lack of findings before the postconviction court. He raised the issue for the first time in his reply brief to us. Thus, the postconviction court did not have an opportunity to determine whether Mr. Lamberson's sentences are illegal for this reason. And it is fairly straightforward that we 2The State acknowledges the absence of such findings. -4- are not accustomed to addressing issues for the first time on appeal. See Annen v. State, 752 So. 2d 1279, 1279 (Fla. 2d DCA 2000) (affirming without prejudice the order denying the appellant's postconviction motion because the appellant raised for the first time on appeal a claim with possible merit). Perhaps in an appropriate motion, Mr. Lamberson can make a stronger case. See Rodriguez-Aguilar v. State, 198 So. 3d 792, 797 (Fla. 2d DCA 2016) ("In Bryant[ v. State, 148 So. 3d 1251, 1258–59 (Fla. 2014)], the supreme court held that when a trial court fails to 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 non-state prison sanction on remand. Thus, on remand the trial court shall impose a non-state prison sanction in accordance with section 775.082(10)." (citation omitted)). The motion he filed in the postconviction court does not do the trick. I am mindful that the Fifth District decided in VanDyke v. State, 76 So. 3d 1077 (Fla. 5th DCA 2011), that a prison sentence imposed under section 775.082(10) without a written finding that a non-state prison sanction could present a danger to the public is "an improper, but not illegal, sentence" under rule 3.800(a). Id. at 1077–78 (citing Davis v. State, 661 So. 2d 1193, 1196 (Fla. 1995)). Our sister district did not indicate whether the trial court made the finding, orally, when imposing sentence. I find it important to note that the cases on which the Fifth District relied did not address sentences, like Mr. Lamberson's, that were imposed under the Criminal Punishment Code and exceeded the statutory maximum under section 775.082(10). See VanDyke, 76 So. 3d at 1078 (citing Davis, 661 So. 2d at 1196 (holding a trial court's failure to -5- reduce to writing at the time of sentencing reasons justifying a guidelines departure sentence does not render a sentence that is within the statutory maximum illegal and subject to correction at any time under rule 3.800(a)), receded from on other grounds by, Mack v. State, 823 So. 2d 746, 748–49 (Fla. 2002))). -6-