YOUNGBLOOD v. STATE (2025)

On Motion For Rehearing En Banc

On the motion of a judge in regular active service on the Court, it was requested that a vote be taken on the motion in accordance with Florida Rule of Appellate Procedure 9.331(d)(1). All judges in regular active service that have not been recused voted on the motion. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the motion for rehearing en banc is denied.

Denied.

I dissent from the denial of rehearing en banc in these cases. The panel majority remanded for correction of the scoresheet to reflect the correct sentence Appellant received in Case Nos. 2022-CF-334 and 2022-CF-335. These errors have no effect on the written sentences and are harmless to Appellant. The panel majority also remanded for correction of the judgment to require Appellant to submit DNA samples. This error harms the government.

Our court and other district courts have, from time to time, corrected these types of errors in Anders cases. See Flowers v. State, 395 So. 3d 1077, 1077 (Fla. 5th DCA 2024) (concluding that there was no prejudicial error to Appellant in the record, but remanding “for entry of an amended sentencing order in which the ten-year mandatory minimum sentences are imposed”); Dubuc v. State, 345 So. 3d 961, 962 (Fla. 5th DCA 2022); Waller v. State, 282 So. 3d 1004, 1004 (Fla. 1st DCA 2019). But we have not identified the basis of our authority to do so, and we have not decided whether correction is mandatory or discretionary.

Whether an appellate court has authority, in the context of an Anders case where the State has not filed a notice of appeal or an initial brief, to correct these types of errors concerns both the proper scope of our Anders review (which is anchored in the constitutional right to counsel), see Smith v. Robbins, 528 U.S. 259, 264 (2000), and a court's role within the constitution's separation of powers. Given these constitutional underpinnings, whether we have authority to correct these types of errors, and if so, whether correction is mandatory or discretionary, are questions of exceptional importance. See Fla. R. App. P. 9.331(d). We should decide these issues en banc.

Per Curiam.

Edwards, C.J., and Makar, Wallis, Lambert, Harris, and Boatwright, JJ., concur. Jay, Eisnaugle, Soud, Kilbane, MacIver, and Pratt, JJ., dissent. Eisnaugle, J., dissents with opinion, in which Kilbane and Pratt, JJ., concur.