King v. StateKing v. State
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sue R. Henderson, Asst. Atty. Gen., Tampa, for appellee.
EN BANC
CAMPBELL, Judge.
Appellant, Aaron Calvin King, appeals the sentences imposed upon him after revocation of his community control. Essentially, appellant challenges only the ten-year prison sentence imposed pursuant to the habitual felony offender statute,
On October 8, 1990, appellant pled guilty to six charges contained in three separate informations. Case number 89-16972 charged appellant with burglary of a structure and petit theft; case number 89-16973 charged grand theft of a motor vehicle and petit theft; and case number 90-12181 charged grand theft of a motor vehicle and obstructing or opposing an officer without violence.
Appellant concedes that he was given notice by the state prior to his pleas that the state intended to treat appellant as an habitual felony offender. In fact, the notice was initiated by the trial judge but, as we observe later herein, we find nothing improper in that procedure. At sentencing, the trial judge determined appellant to be an habitual felony offender and, in case number 89-16972, placed appellant on community control for two years on the burglary count and sentenced him to time served on petit theft; in case number 89-16973, appellant was placed on community control for two years on the grand theft of a motor vehicle charge and six months community control on the petit theft; and in case number 90-12181, appellant was placed on community control for two years on each of the two counts. All of the sentences were ordered to run concurrent with each other and consecutive to the prison time appellant was then serving for a previous offense. Neither appellant nor the state appealed from the judgments or sentences or the determination that appellant was an habitual felony offender.
On December 12, 1990, appellant pled guilty to violations of his community control and was then sentenced as an habitual felony offender to ten years in prison on the burglary count of case number 89-16972; five years probation for the grand theft of a motor vehicle as charged in Count I of case number 89-16973, and time served for the petit theft charged in Count II of that information; and five years probation for the grand theft of a motor vehicle charged in Count I of case number 90-12181, and one year probation for Count II charging obstructing an officer. Each of the sentences wherein probation was imposed was to be concurrent with the others but consecutive to the prison sentence.
In this appeal taken from the sentences imposed upon the revocation of his community control, appellant now seeks to attack both his previous sentences of community control and his habitualization, even though there was no appeal at the time those previous sentences were imposed. Even if appellant‘s present attack on his original habitualization and sentences of community control was timely, which we hold it is not, we are without a sufficient record of that original sentencing procedure to be able to properly address any possible error there, although we do have documentation of appellant‘s prior felony offenses sufficient to support his habitualization.
The thrust of appellant‘s argument is that the trial judge‘s sentence of community control following a finding that appellant was an habitual felony offender constituted an illegal application of the habitual felony offender statute. Appellant then argues that, assuming that the habitual felony offender statute was improperly applied, the subsequent ten-year prison sentence imposed upon violation of community control was an upward departure from the guidelines without adequate reasons.
First, we reject appellant‘s argument that a sentence of community control following habitualization of a defendant is illegal. As we have previously observed, even were we able to now reach any procedural errors in the original sentencing process, we are without a sufficient record to reveal to us what errors, if any, may have taken place. Even so, we conclude that there is nothing inherently or per se illegal about a sentence of community control coupled with a determination that a defendant is an habitual felony offender. Therefore, any error in the procedure that led to the sentence now complained of was waived by the lack of a timely appeal.
There have been a number of earlier cases, mainly decided under prior versions of the habitual felony offender statute, that have noted an inconsistent sentencing procedure in those cases that was perceived to be contrary to legislative intent. The perceived legislative intent was that an habitual felony offender should not be sentenced to a term of probation or community control or any sentence less severe than if the defendant had been sentenced without habitualization under normal sentencing guidelines or procedure. See Eutsey v. State, 383 So.2d 219 (Fla. 1980); Davis, 559 So.2d at 1279; Scott v. State, 550 So.2d 111 (Fla. 4th DCA 1989), review dismissed, 560 So.2d 235 (Fla. 1990); Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), quashed on other grounds, 476 So.2d 191 (Fla. 1985); Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979).
We conclude now, however, that recent amendments to
The implementation of the habitual offender sentencing process has always been a two step procedure. The first step is that prescribed in
(3) In a separate proceeding, the court shall determine
if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) andif the defendant is an habitual felony offender or an habitual violent felony offendermisdemeanant. The procedure shall be as follows:
.....
(4)(a) The court,
in conformity with the procedure established in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant,shall sentence the habitual felony offender as follows:
The legislative scheme in regard to habitual felony offenders as now set forth
This conclusion is supported by two distinct subsections of
(c) If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is a habitual felony offender or a habitual violent felony offender, the court shall make that determination as provided in subsection (3).
The first sentence of
The second sentence of
We, therefore, conclude that a trial judge retains the discretion to exercise leniency in regard to habitual felony offenders in two ways. First, using
Clearly, if the trial judge is not required but is subject to being “persuaded” to impose the maximum sentence authorized, the trial judge must obviously also be subject to being “unpersuaded” and thereby have the discretion to impose a lesser than maximum or even the minimum sentence authorized. We agree with our colleagues of the Third District Court of Appeal in their well-reasoned and carefully analyzed opinion in Henry, that State v. Brown, 530 So.2d 51 (Fla. 1988), remains viable in interpreting the use of the term “shall,” as it applies to the sentencing procedure set forth in
It, therefore, appears that the thrust of the habitual offender statute has been redirected. Prior to the 1988 amendments, the trial judge was required to make findings that it was necessary for the protection of the public in order to determine a person to be an habitual felony offender and to impose an enhanced sentence pursuant to the statute. Since the 1988 amendments, once it appears to the trial judge that a person is an habitual felony offender, after proper notice to the defendant, such a determination shall be made without the necessity of any findings except that the defendant qualifies by reason of the requisite prior convictions for habitualization. Then, without any findings other than the defendant is an habitual felony offender, any sentence as provided in the statute may be imposed unless the trial judge decides that a sentence as an habitual felony offender is not necessary for the protection of the public.
Another significant amendment accomplished by chapter 88-131 was the addition of
(e) A sentence imposed under this section shall not be subject to the provisions of s. 921.001. 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 s. 944.275(4)(b).
The operative words of the first sentence of that subsection are “a sentence imposed.” It is not, therefore, merely the determination that a person is an habitual felony offender that makes inapplicable the sentencing guidelines procedures established by
If, as in this case, a trial judge exercises leniency by not imposing a
In reaching our conclusions herein, we have examined carefully the numerous decisions of the appellate courts of this state that have at least in part addressed the issues that concern us. While we have not been able to harmonize all of those decisions, nor all of our own decisions; nevertheless, our conclusions herein now reflect what we perceive legislative intent to have been, as well as we are able to discern it, from the various legislative enactments.
In summary, we find that persons found to be habitual felony offenders may be sentenced as habitual felony offenders under
A person being sentenced as an habitual violent felony offender under
A decision by the court pursuant to
In concluding our analysis of the sentencing alternatives possible under
As we have heretofore observed, the record in this case establishes appellant‘s prior felony offenses sufficient to support his habitualization and there is now no contention by appellant otherwise. Because no appeal was taken from that original habitualization and the sentence of community control, those issues and any procedural errors related thereto were thereby waived. We, therefore, find that the trial judge committed no error by imposing an enhanced sentence pursuant to
Affirmed.
SCHOONOVER, C.J., and RYDER, DANAHY, HALL, THREADGILL, PARKER, and PATTERSON, JJ., concur.
FRANK and ALTENBERND, JJ., concur with majority, but would certify the question in the separate opinion.
LEHAN, J., concurs with separate opinion.
LEHAN, Judge, concurring.
While I concur with the result of the majority opinion, I do so with reservations.
For reasons including those stated in my concurring opinion in Steiner v. State, 17 F.L.W. D166 (Fla. 2d DCA Dec. 30, 1991) [591 So.2d 1070 (Table)], I have found it difficult to imagine that the legislature intended that a defendant who has been declared to be a habitual offender, as was the defendant in this case, could properly be placed on probation or community control. As stated in that concurring opinion, it has
I have considered whether the supreme court meant the word “permissive” in the Burdick context to mean only permissively within the range of incarceration provided by the legislature for habitual offenders. But the supreme court‘s multiple, unrestricted use of the word “permissive” in its Burdick opinion requires the conclusion that the court meant what it said, i.e., that it is permissive whether to sentence a habitual offender to incarceration or not. Accordingly, I must conclude that the supreme court has effectively agreed with the majority opinion in this case that the legislature intended that trial courts be authorized to sentence declared habitual offenders to probation or community control. We therefore must affirm.
Nonetheless, since Burdick did not involve the specific issue involved in this case, I would certify the following question to the Florida Supreme Court as of great public importance:
MAY A DECLARED HABITUAL FELONY OFFENDER OR HABITUAL VIOLENT FELONY OFFENDER BE PLACED ON PROBATION OR COMMUNITY CONTROL?
There is another difficult aspect of this case. The supreme court in Lambert v. State, 545 So.2d 838 (Fla. 1989) established the restriction that upon a violation of probation or community control, no sentence beyond a one-cell bump up under the sentencing guidelines is permitted. Yet pursuant to the majority opinion in this case, we have, while approving a sentence of community control for a declared habitual offender, approved a sentence in excess of such a one-cell bump up upon the habitual offender‘s violation of community control.
The majority opinion looks to Williams v. State, 581 So.2d 144 (Fla. 1991) as authority for an extended sentence upon revocation of probation or community control. But, as pointed out in the Steiner concurring opinion, Williams was not concerned with the imposition of an extended habitual offender sentence upon revocation of probation or community control. Williams, which appears to contain an exception to Lambert not directly applicable to this case, was concerned with guidelines sentences, which a habitual offender sentence is not. That is, under Williams a sentence which is an upward departure from the sentencing guidelines may be validly imposed upon revocation of probation or community control if the reasons for departure were already in existence at the time probation or community control was imposed. But since habitual offender status is not a proper basis for an upward departure, e.g., Whitehead v. State, 498 So.2d 863 (Fla. 1986); West v. State, 583 So.2d 394 (Fla. 2d DCA 1991), Williams can be viewed as questionable authority for the extended sentence in this case upon revocation of probation or community control beyond the one-cell bump up restriction of Lambert.
Further indicating that Williams was not considering habitual offender sentences is language in the opinion in that case reflecting a desire to not deter a trial judge from being “willing to give the defendant another chance by putting him on probation.” 581 So.2d at 146. It does not seem at all realistic to conclude that the author of that opinion, Justice Grimes, meant while writing in a guidelines case to not deter, and was even thinking of not deterring — and thereby in effect actually encouraging — trial judges giving habitual offenders another chance.
Yet, consistent with my reservations expressed above about defendant‘s initial sentencing, I could not hold, notwithstanding Lambert, that defendant should escape habitual offender sentencing now. Accordingly, I concur with the majority opinion on
IF THE ANSWER TO THE QUESTION CERTIFIED ABOVE IS IN THE AFFIRMATIVE, MAY THE HABITUAL OFFENDER, UPON VIOLATION OF PROBATION OR COMMUNITY CONTROL, BE SENTENCED TO AN EXTENDED TERM OF INCARCERATION UNDER SECTION 775.084(4)(a) OR (b)?