Emerson v. State
On rehearing, the First DCA affirmed Emerson's sentences after his nolo contendere plea, holding that even if reviewable, no fundamental error occurred where the trial court failed to hold a competency hearing or issue a written competency order before sentencing, given the psychologist's report finding him competent and his own coherent allocution. The court extensively analyzed whether Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) permits a pleading defendant to raise unpreserved fundamental error in the 'sentencing process' (as opposed to the 'sentencing order') post-Dortch and Jackson, concluding this creates a troubling gap ('Jackson Hole') in appellate review, and certified a question of great public importance to the Florida Supreme Court. Judge Tanenbaum concurred in the affirmance but dissented from certification, arguing the rule's catch-all 'as otherwise provided by law' provision already preserves a defendant's constitutional right to appeal preserved sentencing-process errors.
Key facts
- Appellant Emerson entered a nolo contendere plea to criminal charges and was sentenced without the trial court holding a competency hearing or issuing a written competency order, despite no prior competency determination on the record.
- Emerson appealed on grounds of fundamental error in the sentencing process, arguing the absence of a competency hearing and written order violated due process, though a psychologist's report found him competent and he gave a coherent allocution.
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Why it matters
This opinion is highly significant for criminal appellate practitioners because it identifies and certifies a genuine 'gap' (the so-called 'Jackson Hole') in Florida's post-plea appellate framework: under the majority's… — full analysis with a trial
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