Jackson V. State

In this case, we decide whether a trial court's consideration, for sentencing purposes, of victim impact testimony without defense counsel present is a sentencing error as contemplated by rule 3.800(b), Florida Rules of Criminal Procedure. If it is, then for the error to be considered on appeal the defendant must either object at the time or file a post-sentence motion under rule 3.800(b). If it is not a sentencing error, then an unpreserved claim may be considered on appeal even if a motion under rule 3.800(b) is not filed, but only under the stringent fundamental error standard. In deciding this issue, we must resolve a conflict in the district courts of appeal about which errors constitute "sentencing errors" for purposes of rule 3.800(b) and Florida Rule of Appellate Procedure 9.140(e). The First District Court of Appeal has held that the denial of counsel at resentencing is "not a sentencing error, but rather a due process error" that may be raised for the first time on appeal and reviewed for fundamental error. See Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003). In the opinion we review, the Second District Court of Appeal disagreed, concluding that a claim that the "lack of representation at sentencing violates due process is a claim of sentencing error and therefore should have been preserved for appeal as required by rule 9.140(e)." Jackson v. State, 952 So. 2d 613, 615 (Fla. 2d DCA 2007). The Second District certified conflict with Gonzalez. Id. at 615. We have jurisdiction, art. V, § 3(b)(4), Fla. Const., and accepted review to resolve the conflict. Jackson v. State, 959 So. 2d 716 (Fla. 2007) (accepting review).