Brown v. StateBrown v. State
Brown, having pled nolo contendere, appeals his conviction and sentence, entered on charges of aggravated battery, aggravated assault, carrying a cоncealed weapon, unarmed burglary of a structure, dealing in stolen property, and grand theft of property over $20,000. He raises four issues on appeal:
(1) Whether his sentence should be vacated for failure of the trial court to inform him that in electing to be sentenced under the sentencing guidelines he was waiving his right to parole;
(2) Whether the court erred in departing from the guidelines sentence without stating clear and convincing reasons;
(3) Whether the court, in convicting and sentencing Brown of both theft and trafficking of the same stolen property, violated
section 812.025, Florida Statutes (1983) ; and(4) Whether the imposition of consecutive minimum mandatory sentеnces for aggravated assault and aggravated battery
was improper when the parties had agreed that the circumstances of the two offenses constituted a single transaction.
We affirm on issues 1, 2, and 3, and reverse on issue 4.
On June 24, 1983, a sporting goods store was broken into and firearms vаlued at $20,000 stolen. On that same day, defendant and two other persons sold a large number of these guns to several other individuals. Two months later, on August 28, 1983, defendant was at a taco restaurant and got into an argument with two men. During the confrontation, defendant рulled out a handgun, pointed it at the face of one of the men, and said, “Your life is not worth fifty cents.” Defendant then chased this individual outside the restaurant and down the street. The other man involved in the argument, and two women who were with them, got into a car and began chasing defendant. Defendant fired his gun at the person he was chasing and then turned and fired it at the car, hitting the man in the vehicle in the side of the head.
Defendant was arrested and charged in one information with aggravated assault, aggravated battery, shooting into an occupied vehicle, and carrying a concealed weapon. In another information, he was charged with armed burglary of a structure, trafficking in firearms, and grand theft of firearms valued at $20,000 or more. At a consolidated hearing, defendant pled nolo contendere to aggravated battery, aggravated assault, and carrying a concеaled firearm and, further, pled nolo contendere to armed burglary of a structure, dealing in stolen property, and grand theft of property valued at over $20,000. At the plea hearing, defendant‘s counsel stated that the plea negotiations were built around the sentencing guidelines and that defendant desired to accept sentencing under the guidelines.
A sentencing heаring was held February 17, 1984, at which it was determined that under the guidelines defendant‘s recommended sentence was between four and a half to five and a half years incarceration. The court departed from the guidelines and imposed a total sentence of forty years for all the offenses, setting forth written reasons for departure from the guidelines.
The first issue is whether defendаnt‘s constitutional right of protection against ex post facto laws was violated when he was sentenced under the guidelinеs without the court having determined that he knowingly and intelligently waived his right to parole when he elected application of the guidelines. This issue has been addressed in several recent decisions of this court. Jones v. State, 459 So.2d 1151 (Fla. 1st DCA 1984); Coates v. State, 458 So.2d 1219 (Fla. 1st DCA 1984); Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984); Johnson v. State, 462 So.2d 49 (Fla. 1st DCA 1984). In each of these cases, it was held thаt if a defendant “affirmatively selects” to be sentenced pursuant to the guidelines, it is not necessary that there be a showing that he voluntarily and intelligently waived his parole eligibility. In the present case, it is clear that the defendant did “affirmatively select” to be sentenced pursuant to the guidelines. In view of these previous decisions, we reject defendant‘s argument and affirm on issue 1. We recognize, however, meritorious arguments with respect to both sides of this issue (see Judge Ervin‘s dissenting opinion in Jones v. State, supra); therefore, we certify to the Florida Supreme Court the following question as one of great public importance:
WHETHER A DEFENDANT‘S CONSTITUTIONAL RIGHT OF PROTECTION AGAINST EX POST FACTO LAWS IS VIOLATED, WHEN HE AFFIRMATIVELY SELECTS, PURSUANT TO
SECTION 921.001(4)(a), FLORIDA STATUTES (1983) , TO BE SENTENCED PURSUANT TO THE GUIDELINES BUT THERE IS NO SHOWING IN THE RECORD THAT THE COURT EXPLAINED THAT BY SELECTING GUIDELINES SENTENCING THE DEFENDANT WAIVES HIS ELIGIBILITY FOR PAROLE.
Defendant‘s seсond point is that the court failed to set forth sufficient clear and convincing reasons for departing from the
Defendant‘s third point on appeal is that
The final issue raised by defendant is that the court erred in imposing two consecutive three-year minimum mandatory sentences. Our review of the plea hearing transcript in this case reflects that the state and defendant agreed that the facts of the present case would support only one three-year minimum mandatory sentence. Additionally, the trial judge, during his explanatiоn of the consequences of a nolo plea, told defendant that “by entering this plea, you would be subject to a three-year minimum mandatory sentence” (emphasis supplied). Because the parties agreed that only one three-year minimum mаndatory sentence would be imposed, and because this was also communicated to defendant by the trial judge, we vacate the sentence and remand to the trial court with directions to modify the three-year minimum mandatory sentences in accordance with this opinion.
ERVIN, C.J., and MILLS, J., concur.