Doin' time for an unproven crime: the problem of unpreserved evidence sufficiency issues in criminal appeals.

• Author: Sanders, Richard

Ralph Monroe was convicted of capital sexual battery and lewd and lascivious molestation. To prove those offenses as charged, the State had to prove Monroe was over 18 when they occurred. (1) This is a crucial element, for punishment purposes, particularly as to the sexual battery; whether Monroe was over or under 18 means the difference between a mandatory life sentence and a term of years that could be much lower. (2)

The trial evidence proved Monroe "molested the victim during Monroe's senior year of high school, but there was no evidentiary basis for determining whether" that occurred after Monroe turned 18. (3)"[I]t was obvious the defense was not conceding that Monroe was 18" when the crime occurred; but defense counsel did not raise this evidence-sufficiency issue in a motion for judgment of acquittal. (4) The district court refused to address the merits of the unpreserved issue and affirmed the convictions for the two over-18 offenses. (5)

The court recognized that some valid-but-unpreserved evidence-sufficiency issues can be remedied on direct appeal as fundamental error. (6) But the court read F.B. v. State, 852 So. 2d 226 (Fla. 2003)--the leading case on point, discussed in section III.C. below--to mean that fundamental error occurs only when "the evidence is insufficient to show that a crime was committed at all," (7) which the Monroe court interpreted to mean that a court cannot grant relief on a valid-but-unpreserved sufficiency issue unless "the evidence could not support the conviction of any crime whatsoever," (8) That test was not met here because the evidence proved that Monroe "committed [the two offenses] ... at least as a juvenile, even if not as an adult." (9)

The court also said it could not address this issue under the heading of ineffective assistance of counsel ("LAOC"), based on counsel's failure to preserve the sufficiency issue. Monroe did not raise this issue on appeal and, even if he had, "[finding [IAOC] due to the failure to raise the [sufficiency issue] would be tantamount to holding that such an issue need not be preserved, contrary to the holding in F.B."'0 The court certified a question to the Florida Supreme Court:

DO[ES] F.B. ... REQUIRE PRESERVATION OF AN EVIDENTIARY DEFICIENCY WHERE THE STATE PROVED ONLY A LESSER INCLUDED OFFENSE AND THE SENTENCE REQUIRED FOR THE GREATER OFFENSE WOULD BE UNCONSTITUTIONAL AS APPLIED TO THE LESSER OFFENSE? (11) This article does not address this precise question but rather more generally considers how Florida appellate courts should handle the recurring problem of unpreserved evidence-sufficiency issues in direct appeals in criminal cases. (12)

Monroe found F.B. to be controlling. The precise meaning of F.B. is unclear. But Monroe may be accurately interpreting it. Current Florida law may be as follows: If the State proves the defendant committed any crime whatsoever, then an appellate court cannot address any unpreserved evidence sufficiency issue, even if it is undisputed that the State not only did not prove, but could never prove, the crime of conviction. Thus, even if it was undisputed that Monroe was under 18 (or the victim was over 12; or both) when the crime occurred, the court must affirm if counsel did not preserve the age issue. (13) Indeed, if Monroe's reading of F.B. is correct, then even if it was undisputed that no sexual battery occurred, an appellate court would have to affirm (if that issue was unpreserved) if the victim testified that Monroe gave him a beer or a puff of marijuana. Under the any-crime-whatsoever test in Monroe, this would prove that a-crime-was-committed, and that would prevent the court from addressing any unpreserved sufficiency issues.

It is not clear whether F.B. can be read so broadly. This will be discussed in section IV.B. below. But it is clear that, under F.B., some valid-but-unpreserved sufficiency issues can be remedied as fundamental error but others cannot.

This article argues that, regardless of how we interpret F.B., its reasoning is flawed to the extent that it bars some valid-but-unpreserved sufficiency issues from being corrected as fundamental error. The Florida Supreme Court should recede from F.B. and recognize that, at least as long as Florida Rule of Criminal Procedure 3.380(c) (14) continues to exist in its present form, no sufficiency issues need to be preserved in criminal cases.

This conclusion is based on the following logic: The preservation rule serves several general purposes, but the only real reason to require sufficiency issues to be preserved in criminal cases is to give the State a chance to cure any evidence deficiencies before the case is submitted to the jury. But, as the Florida Supreme Court held in State v. Stevens, (15) under Rule 3.380(c) sufficiency issues can be initially raised post-verdict, when it is too late to cure-the-deficiency. There is no excuse for defense counsel's failure to raise a valid sufficiency issue under Rule 3.380(c). Thus, this failure will always constitute IAOC.

Given this, all sufficiency issues should be addressed on direct appeal. Failure to do so is inefficient because it does not resolve the issue but rather merely channels it to post-conviction proceedings, where it will reappear as an IAOC claim (which, if the unpreserved issue has merit, should be automatically granted). This is also unfair because the defendant generally will have to raise the issue pro se in a post-conviction motion, often while remaining incarcerated for a crime the State did not prove.

Sections I and II of the article lay out the general principles of the preservation rule and its fundamental-error exception. Section III discusses the Florida cases that have wrestled with the problem of unpreserved sufficiency issues in criminal cases. The problem in the cases--seen in F.B. and in the pre-F.B. district court cases--is that Florida courts do not say that all valid-but-unpreserved sufficiency issues should be remedied as fundamental error. This means there will be some cases where the evidence in the record fails to establish all the elements of the crime of conviction but the court will affirm because the issue was not preserved. This raises two questions: How we distinguish these two classes of cases; and why do we draw this distinction?

Section IV addresses these two unanswered questions in F.B. First, assuming the a-crime-was-committed test is the proper test for fundamental error, how do we apply this test in practice? Does a-crime include, as Monroe said, any-crime-whatsoever? If not, what does it include? As to why we draw the distinction, the only possibly viable reason given in F.B. is the cure-the-deficiency logic. But, as just noted, this is not a valid reason as long as Rule 3.380(c) allows sufficiency issues to be initially raised post-verdict. No Florida court has addressed this latter argument.

Further, the a-crime-was-committed test is not related to the cure-the-deficiency logic that is said to justify it. Whether the evidence proved that a/wit/icry-crime-was-committed tells us nothing about whether, as to the crime of conviction, the State could have cured-the-deficiency if the unpreserved sufficiency issue had been raised during trial.

Section IV also summarizes the Florida cases that have recognized that some unpreserved issues in criminal appeals--including sufficiency issues--can be addressed as IAOC claims on direct appeal. This body of case law raises a third unanswered question: If trial counsel's failure to raise a valid sufficiency issue under Rule 3.380(c) constitutes clear IAOC that can be remedied on direct appeal, why do we even bother with this fundamental error analysis?

Section V briefly summarizes the case law from other jurisdictions. Even without a provision like Rule 3.380(c), the overwhelming majority of other jurisdictions allow unpreserved sufficiency issues to be raised on direct appeal. The article concludes that there is no reason to use the F.B. fundamental error analysis. A valid-but-unpreserved sufficiency issue will always be fundamental error because the failure to preserve the issue violated the defendant's fundamental right to effective assistance of counsel. The Florida Supreme Court should recede from F.B. and allow all unpreserved sufficiency issues in criminal cases to be addressed on direct appeal.

1. THE PRESERVATION RULE

   Under Florida Statute section 924.051(3), an issue cannot be raised in a criminal appeal unless it "is properly preserved or, if not properly preserved, would constitute fundamental error." (16) "'Preserved' means that [the] issue ... was timely raised before, and ruled on by, the trial court, and that the issue ... was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor." (17) The legislature "deferred to the judicially created definition of'fundamental error.'" (18)

   The preservation rule promotes several general interests: 1) Discouraging "sandbagging," i.e., deliberately allowing error to occur so that it might later be used to get appellate relief from an unfavorable trial outcome; 2) promoting judicial economy and order by encouraging the correction of errors at the earliest opportunity, which eliminates the need for appeals and retrials; 3) keeping trial judges in their proper role as neutral arbiters, a role that might be compromised if judges are encouraged to correct sua sponte unobjected-to errors; and 4) alerting opposing parties to problems with their proof and giving them a chance to cure the evidence deficiency before the case goes to the jury. (19) As will be seen, Florida courts cite the cure-thedeficiency interest to justify the preservation rule for sufficiency issues in criminal cases.

   The preservation rule is a procedural rule designed to achieve certain practical results. One Florida district court said the rule's "real purpose:"

   [A]pplies during a jury trial to assure correct rulings ... on...