Unpreserved issues in criminal appeals.

• Author: Sanders, Richard J.
• Position: Florida

This article addresses the problem of unpreserved issues in appeals brought by criminal defendants. This problem differs from the analogous problem in other types of appeals. Criminal defendants have constitutional rights other litigants do not, most notably the right to effective assistance of counsel. The opposing party (the state) has ethical obligations beyond those of ordinary litigants; such obligations restrict the state's ability to "push the edge of the envelope," or take advantage of weak opposing counsel, in its trial tactics. Criminal appeals are virtually automatic and, for the most part, publicly financed. Collateral relief is more readily available and more often used; again, the costs are borne almost entirely by the public. Thus, society has significant interests in criminal defense appeals that it does not have in other appeals. Finally, the consequences of losing in the trial court are qualitatively different for criminal defendants.

The general rules of preservation may not be applied to criminal defense appeals without regard to these differences. The following hypothetical opinion provides perspective:

Appellant challenges his conviction for first degree murder. The record shows prejudicial error occurred at trial. However, since the issue was not preserved, we affirm, without prejudice to appellant's right to seek relief under rule 3.850.

The author is aware of no opinions like this in Florida law. Indeed, one cannot imagine such an opinion. Although there is no way to prove it, it seems likely that, if an appellate court is convinced from the record that prejudicial error occurred, that court will find a way to reverse, either by loosening the preservation rule (1) or by fitting the case within one of its exceptions.

Florida courts recognize three such exceptions: fundamental error, ineffective assistance of trial counsel, and cumulative error. Although these three developed separately, they should be (and, at least implicitly, are being) blended into a single rule: Appellate courts should address the merits of the issue if the record is sufficient to allow the court to do so. The record is sufficient if 1) the issue was preserved or 2) if unpreserved, the record is sufficient to allow the court to determine that a) error did occur and b) there was no legitimate tactical reason for defense counsel's failure to preserve the issue. If conditions a) and b) are met, the court should reverse if the error was prejudicial.

If it is clear from the record that prejudicial error occurred, it is the appellate court's duty to reverse, in order to vindicate the defendant's due process right to a fair trial. The label applied to the legal basis for reversal is irrelevant; what is important is the determination that is clear from the record that prejudicial error occurred.

The rule just proposed is not a new rule. Rather, the historical development of the law in this area shows this is the existing rule, although it has not yet been fully articulated.

Fundamental Error

"[Florida] courts have struggled to establish a meaningful definition of `fundamental error' that would be predictive as opposed to descriptive." (2) Over the years, the Florida Supreme Court has offered several definitions of fundamental error, including: "[error which] goes to the foundation of the case"; "error which reaches down into the validity of the trial itself"; and error as a result of which "the interests of justice present a compelling demand for its application." (3)

This problem was fully exposed when the courts tried to apply the concept of fundamental error to the ever-changing complexities of Florida sentencing laws. (4) This sentencing problem helped prompt the passage of the 1996 Criminal Appeals Reform Act (CARA). CARA generated a great deal of ferment and conflict in the district courts, on such issues as legislative control over both the district courts' jurisdiction and the rules appellate courts must apply when deciding criminal appeals. (5) These cases also caused courts to reexamine the problem of unpreserved issues, and the role of appellate courts, in criminal appeals.

In two recent cases, the Florida Supreme Court resolved the separation of powers issues by reaffirming judicial authority in these areas and interpreting CARA as merely codifying existing law. With respect to the role of appellate courts, the Supreme Court laid the groundwork for the rule proposed here.

The first CARA case is Goodwin v. State, 751 So. 2d 537 (Fla. 1999), which held that CARA "[did not] abrogate [pre-CARA] harmless error analysis" but rather merely codified existing law. (6) Id. at 538. This conclusion was reached as follows: With respect to "constitutional errors," U.S. Supreme Court precedent requires a harmless error test that apparently conflicts with CARA; CARA cannot override federal constitutional law, so it must be interpreted in a manner consistent with federal law; there is no meaningful distinction between constitutional error and nonconstitutional error in this context because even nonconstitutional errors "impact[ ] the defendant's right to a fair trial and therefore implicate[ ] a defendant's basic due process rights"; thus, the pre-CARA harmless error rule still applies in all cases. (7) The Court also said:

[E]nsuring that criminal trials are free from harmful error [is] an essential judicial function that serves to protect a defendant's constitutional right to a fair trial ... free of harmful error

[Appellate courts have] the undeniable obligation ... to safeguard a defendant's right to a fair trial

[T]he Legislature cannot relieve the appellate courts of their independent and inherent obligation to assess the effect of the error on the verdict

[A]n independent harmless error review ... is ... critical to the appellate function.... (8)

Goodwin identified the policy concerns of the harmless error rule as

"(1) promoting public trust and confidence by preserving the State's interest in the finality of verdicts free from harmful error; ... (2) protecting the citizen's right to a fair trial by ensuring that no conviction will be affirmed unless ... there is no reasonable possibility that the error affected the verdict; (3) reaffirming appellate courts' obligation not to reverse for technical or harmless error; and (4) providing an incentive on the part of the State ... to refrain from causing error...." (9)

Finally, the Court also said that "[o]nly when the defendant ... demonstrat[es] the existence of preserved error does the appellate court engage in ... harmless error analysis. If the error is ... unpreserved, the conviction can be reversed only if the error is `fundamental.'" (10)

The Court did not amplify this latter assertion. The inference is that courts should not engage in harmless error analysis if the issue is unpreserved. But harmless error analysis comes into play only after the court determines error occurred. Whether it is clear from the record that error occurred, and whether the error was harmless, are distinct questions. The lack of preservation may make it impossible to tell whether error occurred; but once error is discovered, the lack of preservation should not modify the prejudice inquiry. If defendants have a constitutional right to a fair trial, and appellate courts are...