Emerson v. State

On rehearing, the First District affirmed Emerson's sentence but certified a question of great public importance to the Florida Supreme Court: after State v. Dortch, can a defendant who pleaded guilty raise an unpreserved claim of fundamental error occurring in the sentencing process (as opposed to an error in the sentencing order)? The court held that under Rule 9.140(b)(2)(A)(ii)d. and Jackson v. State's definition of 'sentencing error,' a defendant who pleads guilty appears barred from raising even fundamental sentencing-process errors on appeal, exposing what the court calls a 'Jackson Hole' in appellate review. The court nonetheless found no fundamental error occurred here regarding the trial court's failure to conduct a competency hearing before sentencing, given the psychological evaluation and Emerson's own coherent allocution. Judge Tanenbaum concurred in the result but dissented from certification, arguing Rule 9.140(b)(2)(A)(ii)e.'s catch-all ('as otherwise provided by law') already preserves the constitutional right to appeal preserved sentencing-process errors, making certification unnecessary since Emerson simply failed to preserve his claim by objection.

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