2D06-3583 / Kramer v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 2D06-3583

Case Date: 12/12/2007

Plaintiff: 2D06-3583 / Kramer

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL GRANT KRAMER,                                                                      )
)
Appellant,                                                                                 )
)
v.                                                                                         )   Case No. 2D06-3583
)
STATE OF FLORIDA,                                                                          )
)
Appellee.                                                                                  )
)
Opinion filed December 12, 2007.
Appeal from the Circuit Court for Pinellas
County; Lauren C. Laughlin and Robert J.
Morris, Jr., Judges.
James Marion Moorman, Public Defender,
and Bruce P. Taylor, Assistant Public
Defender, Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Ronald Napolitano,
Assistant Attorney General, Tampa, for
Appellee.
ALTENBERND, Judge.
Michael Grant Kramer appeals two judgments and sentences that adjudi-
cated him guilty of grand theft of a motor vehicle, driving while license suspended as a
habitual traffic offender, providing a false name to a law enforcement officer, and

resisting arrest without violence.   Mr. Kramer entered an open plea of guilty to the
charges before Judge Lauren C. Laughlin, and sentencing was deferred to a later date.
Thereafter, Judge Laughlin was apparently transferred to another division of the circuit
court and Mr. Kramer's case was assigned to Judge Robert J. Morris, Jr., who granted
Mr. Kramer a series of continuances to prepare his arguments for a downward
departure sentence.   Ultimately, Judge Morris sentenced Mr. Kramer to 37.8 months in
prison, the minimum sentence required by the guidelines for grand theft of a motor
vehicle, and to a consecutive term of five years' probation for driving while his license
was suspended as a habitual traffic offender.   The remaining offenses resulted in
sentences of time served.
On appeal, Mr. Kramer argues only that his sentences must be reversed
pursuant to Florida Rule of Criminal Procedure 3.700(c)(1) because Judge Laughlin
accepted his plea and therefore had to preside at the imposition of the sentences unless
there was a showing that a substitution of judges was necessary.   Although Mr. Kramer
did not object to Judge Morris presiding at his various sentencing hearings, Mr. Kramer
preserved this argument by filing a motion to correct sentencing error pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2).   Judge Laughlin considered this motion
and denied it, reasoning in part that there was no need for her to conduct the sen-
tencing hearing when she knew little about the case, having simply accepted Mr.
Kramer's plea.   We reverse.
Mr. Kramer correctly notes that the reassignment of a judge to a different
division does not make sentencing by a successor judge necessary under rule
3.700(c)(1).   See Clemons v. State, 816 So. 2d 1180, 1182 (Fla. 2d DCA 2002).
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Further, the rule applies equally to a judge who accepts a plea and therefore may know
very little about the facts of the case as well as to a judge who presides at a trial and
becomes intimately familiar with the details of the crimes.   See Fla. R. Crim. P.
3.700(c)(1); Madrigal v. State, 683 So. 2d 1093, 1096-97 (Fla. 4th DCA 1996).1   It was
therefore error for a successor judge to proceed with Mr. Kramer's sentencing and error
to deny the rule 3.800(b)(2) motion raising this issue.   See Young v. State, 950 So. 2d
516 (Fla. 2d DCA 2007); Lopez v. State, 905 So. 2d 1045 (Fla. 2d DCA 2005); Snyder
v. State, 870 So. 2d 140 (Fla. 2d DCA 2004); cf. Horne v. State, 918 So. 2d 1011 (Fla.
2d DCA 2006) (granting petition alleging ineffective assistance of appellate counsel
where appellate counsel failed to file a rule 3.800(b)(2) motion challenging a violation of
rule 3.700(c)(1)); Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004) (same).2
We therefore reverse the sentences imposed and remand for resentencing before
Judge Laughlin, at least in the absence of a showing that it is necessary for another
judge to preside at sentencing.
Judgments affirmed; sentences reversed and remanded for resentencing.
1    It is noteworthy that Judge Morris fully acquainted himself with the facts of this
case.   We are reversing this sentence, which is a bottom-of-the-guidelines sentence,
only because of the case law interpreting the word "necessary" in Florida Rule of
Criminal Procedure 3.700(c)(1).   We question whether the language of this rule estab-
lishes the best policy for sentencing at this time, or whether a defendant who wishes to
assure a specific judge at a delayed sentencing hearing following a plea should be
required to condition the plea expressly on that right.
2    In Scott v. State, 909 So. 2d 364, 369 (Fla. 5th DCA 2005), the Fifth District
posited that if rule 3.700(c)(1) applied in a probation revocation context, a violation of
the rule should be preserved by a contemporaneous objection and not by a later motion
filed pursuant to rule 3.800(b).   See also Griffin v. State, 946 So. 2d 610, 613 (Fla. 2d
DCA), review granted, 961 So. 2d 933 (Fla. 2007) (noting that rule 3.800(b) was not
intended to circumvent rules requiring contemporaneous objections or enforcing
principles of waiver).   There may be some merit to this position, but this court has
previously corrected the error when preserved by a motion to correct sentence under
rule 3.800(b).   See, e.g., Young, 950 So. 2d at 516-17.
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SALCINES and VILLANTI, JJ., Concur.
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