Burdick v. StateBurdick v. State
Raising several issues, Burdick seeks review of his convictions and sentences for two counts of grand theft of a firearm, grand theft and burglary of a dwelling while armed. Among his arguments on appeal, appellant urges that the trial court erred in failing to give written reasons for departing from the sentencing guidelines. He also asserts that the evidence adduced at trial was insufficient to exclude every reasonable hypothesis of innocence and to support his convictions for armed burglary and theft of firearms. Finding that the trial court was not required under the facts of the case to ascribe written reasons for the sentences he imposed and further that the evidence supports appellant‘s convictions, we affirm as to these points without further elaboration. While we also affirm as to the other issues raised, we believe appellant‘s supporting arguments are deserving of more extended comment.
After the jury found appellant guilty of armed burglary of a dwelling, the trial court sentenced him as an habitual felony offender to life in prison. On appeal, appellant argues (1) that the trial judge erred in concluding that the habitual felony offender statute required that appellant be sentenced to life in prison once the court made the decision to classify appellant as an habitual felony offender; (2) that he should not have been sentenced as an habitual felony offender because the substantive offense for which he was convicted is punishable by a life sentence; and (3) that the habitual felony offender statute is unconstitutional because it provides a greater penalty for an habitual felony offender convicted of a first degree felony than it does for an habitual violent felony offender also convicted of a first degree felony.
With respect to appellant‘s first argument, the record reflects that at the sentencing hearing, the state argued that if
The court, in conformity with a procedure established in subsection (3), shall sentence the habitual felony offender as follows:
1. In the case of a felony of the first degree, for life.
Appellant suggests that a life sentence was discretionary rather than mandatory, relying upon language in a 1988 case, State v. Brown, 530 So.2d 51 (Fla. 1988), in which the supreme court stated that the word “shall” in the 1985 version of this subsection “either was an editorial error or a misapprehension of actual legislative intent by the editors,” and that the legislature actually intended that the life sentence be permissive rather than mandatory. Id. at 53. However, Brown involved the relationship between the new sentencing guidelines and the habitual offender statute, and the court essentially concluded that a trial judge could not exceed the guidelines recommendations simply on the basis of habitual offender status, therefore the life sentence in the habitual offender statute could not be construed as mandatory. Since that time, the legislature has provided that habitual offender sentencing is exempt from the sentencing guidelines.
This court recently held in Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990), that the trial court initially has discretion whether to sentence a defendant under the habitual felony offender statute or the guidelines, but that “[o]nce the court decides, however, to sentence a defendant as an habitual felony offender or habitual violent felony offender, then the court is required to impose sentence in conformity with sections 775.084(4)(a) or 775.084(4)(b).” Id. at 795 (emphasis added). We hold that because the trial court concluded that the habitual felony offender statute was applicable, it properly sentenced appellant to life in prison. Accord State v. Allen, 573 So.2d 170 (Fla. 2d DCA 1991).
Appellant next argues that because his conviction for burglary of a dwelling while armed is a first degree felony punishable by a term of years not exceeding life imprisonment pursuant to
We find Barber not to be controlling in the instant case. Barber was convicted of escape, a second-degree felony, therefore this court was not specifically considering the enhancement of a sentence for a first-degree felony, as in the case at bar. Moreover, the habitual offender statute addressed in Barber was the 1987 version which was substantially rewritten by the Florida Legislature in 1988 to take penalties prescribed under the statute outside the umbrella of the sentencing guidelines and to allow the trial court to impose the penalty of life imprisonment on a defendant by simply making a determination that the defendant fit the statutory definition of an habitual felony offender. Westbrook v. State, 574 So.2d 1187 (Fla. 3d DCA 1991). In essence, appellant here asks us to judicially amend
In Paige v. State, 570 So.2d 1108 (Fla. 5th DCA 1990), the Fifth District reached the same conclusion. In that case, the appellants were convicted for kidnapping, which is also a first degree felony punishable by a sentence not exceeding life imprisonment “or as provided in ... s. 775.084.” Id. at 1108 (quoting
Lastly, appellant urges that the habitual offender statute is unconstitutional because of what he perceives to be impermissibly disparate treatment among and between persons upon whom the statute operates. He argues that
The provisions of Chapter 947 shall not be applied to such person. A defendant sentenced under this section shall not be eligible for gain-time granted by the Department of Corrections except that the Department may grant up to 20 days of incentive gain-time each month as provided for in section 944.275(4)(b).
Chapter 947 deals with parole.
Although habitual offenders serving life sentences are not eligible for parole [
Accordingly, we affirm the judgment of convictions and sentences appealed from. However, because our decision may be in conflict with State v. Brown, 530 So.2d 51 (Fla. 1988), we certify the following question to the supreme court, as we did in State v. Fannin, 578 So.2d 471 (Fla. 1st DCA 1991):
IS A LIFE SENTENCE PERMISSIVE OR MANDATORY UNDER THE 1988 AMENDMENT TO SECTION 775.084(4)(a)1, FLORIDA STATUTES?
We also certify the following question as one of great public importance:
IS A FIRST DEGREE FELONY PUNISHABLE BY A TERM OF YEARS NOT EXCEEDING LIFE IMPRISONMENT SUBJECT TO AN ENHANCED SENTENCE OF LIFE IMPRISONMENT PURSUANT TO THE PROVISIONS OF THE HABITUAL FELONY OFFENDER STATUTE?
JOANOS, C.J., and SMITH, BOOTH, SHIVERS, WIGGINTON, NIMMONS, BARFIELD, ALLEN, WOLF and KAHN, JJ., concur.
ZEHMER, J., concurs in result only.
ERVIN, J., concurs and dissents with opinion.
ERVIN, Judge, concurring and dissenting.
I concur in the result reached by the majority regarding issues one and three but dissent as to issue two. Because of my proposed disposition in this dissent of the three points raised, I choose to reverse the order in which they are presented. Accordingly I shall first address issue three, relating to the constitutional challenge to
Nevertheless, because it is our obligation to avoid constitutional rulings in cases where a statutory construction would suffice, I regard the language in
Turning to the second point, that the lower court erred in imposing an enhanced life sentence upon appellant because the substantive underlying offense for which he was convicted is punishable by a maximum penalty of life imprisonment, I agree and would reverse. In my judgment it is illogical to assume that the legislature intended for a trial judge to have the authority to impose an enhanced sentence of life upon one who was already subject to a maximum sentence of life imprisonment for the offense for which he or she was convicted. My conclusion is supported by the legislative history of both sections 775.08(2) and 775.084, Florida Statutes.
Additionally, during the special session of November 1972, the legislature amended
Even though the legislature as early as 1972 created the classification of life felonies, it never amended the habitual felony offender statute to include enhanced sentencing for life felonies. As previously stated in this dissent, the legislature was no doubt aware that the trial courts’ discretion to impose a sentence for the substantive offense within the maximum range remained unaffected until the creation of guideline sentencing. Consequently, the result reached by the majority is that persons who commit severe felony offenses categorized as life felonies after October 1, 1983 are eligible for guideline sentencing, whereas persons such as appellant who commit first degree felonies punishable for a term of years not exceeding life imprisonment are denied such consideration upon being classified as habitual felons, because
Nor can it be seriously contended that an offense punishable by a term of years not exceeding life may be enhanced because it does not authorize life imprisonment as its maximum punishment. See Ringel v. State, 352 So.2d 88 (Fla. 4th DCA 1977), opinion adopted, 366 So.2d 758 (Fla. 1978), in which the Fourth District rejected appellant‘s argument that an offense punishable by a term of years not exceeding life imprisonment did not include life imprisonment, and ruled that the maximum penalty provided for the offense for which appellant was charged was life imprisonment, not a term of years.
The state, however, points out that the statute establishing appellant‘s underlying felony offense, armed burglary, specifically provides that the offense is punishable either by a term of years not exceeding life imprisonment or as provided in
The reference in
Consequently I conclude that the legislature has never intended for a substantive offense which carries a maximum penalty of life imprisonment to be included within the classification of felonies that are subject to an enhanced life sentence under the habitual felony offender statute, and that it intended only for first degree felonies which are punishable for a term of years to be so enhanced. At the very minimum, because
I would therefore reverse the enhanced sentence and remand the case with directions for the trial court to vacate the sentence of life imprisonment for an underlying offense which is punishable by a term of years not exceeding life imprisonment, and for the trial court either to impose a sentence therefor within the permitted guideline range, or a departure sentence, if valid reasons for departure are given. Nonetheless I agree with the majority in certifying the question to the Florida Supreme Court as one of great public importance.
In saying the above, I recognize that Donald involved a construction of
In tracing the legislative history of
This court in Donald, without any reference to Brown, and notwithstanding the legislature‘s permissive use of the word “may” in
The anomalous result of the decisions in Brown and Donald, if left unchanged, is that the trial courts retain discretion regarding whether to impose the maximum enhanced sentence on habitual nonviolent felony offenders, notwithstanding the appearance of the mandatory term “shall” in the Florida Statutes, see also State v. Padron, 571 So.2d 102 (Fla. 3d DCA 1990), but have no such discretion, pursuant to Donald, despite the legislature‘s explicit use of the term “may,” when sentencing habitual violent felony offenders.
It is true that the legislature has taken no further action to amend subsection (4)(a), by changing the term “shall” to “may,” nevertheless the rule is clear that when a statute is reenacted, the judicial construction placed thereon is presumed to have been adopted in the reenactment; therefore the courts are barred from changing the earlier construction. See Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966). The state, however, argues that Brown has no continuing efficacy because there has been subsequent legislative activity in that the legislature, by adding subsection (4)(e) to
Considering the above legislative changes in pari materia, I think it is entirely probable that the legislature, while removing habitual offender felony sentencing from the procedures provided for guideline sentencing, parole, and certain kinds of gain time, nevertheless intended for trial judges to retain discretion regarding whether to impose the maximum term provided for the enhanced sentences, on both violent and nonviolent habitual felony offenders. In my judgment, the legislative amendments effected in 1988 were in part designed to harmonize the enactments of the separate subsections by authorizing trial judges the same discretion in sentencing habitual violent felons as was previously given them in sentencing habitual nonviolent felons. Indeed, the legislature‘s reenactment of that portion of
In any event, because the legislative intent as to this issue is hardly free from doubt — partly because of judicial constructions placed on the statute — I would apply the same rule of construction previously stated to this penal statute and resolve the doubt in favor of the accused. I am therefore of the view that were it not for Donald, this court should reverse the sentence imposed and give the trial court the option of deciding whether to impose a life sentence or one of a lesser term of years. I concur, however, with the majority in certifying the question to the Florida Supreme Court.