Gayman v. StateGayman v. State
Appellant was charged by information with armed robbery. The state thereafter filed a notice of intent to classify apрellant as an habitual violent felony offender pursuant to
The case was then passed on for sentencing, just prior to which the state filed a noticе of intent to seek felony petit theft sentencing or, in the alternative, a first-degree misdemeanor penalty. The statе next filed an amended notice of intent to classify appellant as an habitual violent felony offender, seeking an enhanced sentence commensurate with a conviction for felony petit theft. At the hearing, the court first adjudicated appellant guilty of the offense of felony petit theft based upon two prior convictions for petit theft. It then found appellant to be an habitual violent felony offender based on the instant conviction for felony petit thеft and a prior conviction of aggravated battery. Consequently, appellant was sentenced to five years as a result of the felony petit theft, with a five-year minimum mandatory provision pursuant to the habitual violent felony offender statute.
On appeal, appellant argues that he was punished twice for a single, discrete offense in violation of the double jeopardy clause prohibiting multiple punishments for the same offense. See, generally, State v. Hegstrom, 401 So.2d 1343 (Fla. 1981). He maintains that the first punishment was the reclassification of his conviction for petit theft to felony petit theft pursuant to
Moreovеr, appellant argues that the legislature did not intend this result, relying on the analysis employed in case law involving the issue of dоuble enhancement by the reclassification of an offense coupled with the imposition of a minimum, mandatory sentеnce for use of a firearm. See, e.g., Williams v. State, 517 So.2d 681 (Fla. 1988) wherein the supreme court found it permissible to enhance an offense for the use of a firearm and then impose a minimum mandatоry sentence for the use of the same firearm. In distinguishing Williams from the instant case, appellant argues that the minimum mandatory sentеnce imposed in Williams was not another sentence enhancement, as it did not increase the maximum penalty for the offense and could be imposed even if the underlying offense was not reclassified. He points out that it was also noted in that decision that the reclassification and mandatory
We must disagree with appellant‘s premise that the provisions utilized herein are dependent on each other and are alternative methods of enhancement. The supreme court in State v. Harris, 356 So.2d 315 (Fla. 1978), ruled that the felony petit theft statute creates a substantive offense “and is thus distinguishable from section 775.084, the habitual сriminal offender statute.” Id. at 316. In that light, the rule is that “[d]ouble jeopardy seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.” State v. Hegstrom, 401 So.2d at 1345. Here, the legislature defined the оffense of felony petit theft in
Consequently, the present sentence is not dissimilar to the sentence analyzed in Williams v. State and does not run afoul of the double jeopardy provisions as discussed in State v. Hegstrom. As noted by the state, where possible full effect must be given to all statutory provisiоns, and related statutory provisions should be construed in harmony with one another. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1981). Further, as pointed out in State v. Whitehead, 472 So.2d 730 (Fla. 1985), punishment of crimes is a legislative matter, and absent an indication from the legislature that subsections are an “either/or proposition,” both will be followed. Id. at 732. Since appellant can point to no expression of legislative will that indicates petit theft enhancement and habitual violent offender sentencing are an “either/or proposition,” effect must be given to both.
However, because we perceive this issue to present a question of great public importance, we certify the following question to the supreme court:
WHETHER THE DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS WERE VIOLATED BY THE TRIAL COURT‘S RECLASSIFYING APPELLANT‘S OFFENSE AS FELONY PETIT THEFT AND THEN USING THAT FELONY CLASSIFICATION TO ENHANCE APPELLANT‘S SENTENCE PURSUANT TO THE HABITUAL VIOLENT FELONY OFFENDER STATUTE.
AFFIRMED.
ERVIN, J., and CAWTHON, Senior Judge, concur.