Adams v. State

• Decision Date: 25 October 1979
• Docket Number: No. FF-349,FF-349
• Parties: Ulysses ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 47

376 So.2d 47

Ulysses ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.

No. FF-349.

District Court of Appeal of Florida, First District.

Oct. 25, 1979.

Michael A. Minerva, Public Defender and Margaret Good, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Patti L. Englander, Asst. Atty. Gen., Tallahassee, for appellee.

ROBERT P. SMITH, Judge.

Adams appeals from a sentence imposed on him as an habitual felony offender whose extended imprisonment ¹ the trial court found "necessary for the protection of the public from further criminal activity by the defendant." Section 775.084, Florida Statutes (1977). At sentencing it was conventionally proved, by documentary evidence and testimony, that the two felonies for which Adams was to be sentenced were committed within five years of his release from a prison sentence imposed for a prior armed robbery. Adams thus qualified as an "habitual felony offender," ² the threshold inquiry in Section 775.084 proceedings. The issues before us are (1) the extent to which the trial court's second-stage determination, that an extended sentence is "necessary for the protection of the public from further criminal activity" by the defendant, may be influenced by the probation officer's presentence investigation report, as distinguished from evidence conventionally adduced in court, and particularly by hearsay statements in the report which attribute violent crimes, unproven and unprosecuted, to Adams; and (2) the sufficiency of the court's stated findings that an extended five-year sentence is necessary to protect the public from further criminal activity by Adams.

We hold there are no constitutional or statutory objections to the sentencing court relying on presentence investigation reports ³ in Section 775.084 proceedings, as in ordinary sentencing, but that Section 775.084, construed in the light of due process requirements, requires that hearsay recitations in the report of unproved criminal activity must be corroborated, if contested, by witnesses subject to confrontation and cross-examination by the defendant.

Adams was charged in two third degree felony counts with possession of heroin and possession of narcotics paraphernalia: a syringe, cooker, and foil. Before the trial date, the state attorney served notice that he intended to seek an extended sentence of up to ten years. Section 775.084(3)(b); see also fn. 1, Supra. On the day of trial, Adams withdrew his not guilty plea and pleaded guilty understanding that the court would delay sentencing pending consideration of a presentence investigation report. A copy of the presentence report, including the confidential section, was timely given to Adams' counsel or, at least, Adams does not contend otherwise. At the sentencing hearing, the State readily proved that Adams is an habitual felony offender. To establish that an extended sentence "is necessary for the protection of the public from further criminal activity by the defendant" the state relied entirely on the presentence investigation report prepared by a probation and parole officer who was present at the hearing. The report states, among other things, that Adams had used a sawed-off shotgun in committing the prior armed robbery ⁴ and that Adams was an admitted heroin addict who dropped out of a rehabilitation program and chose to "lead the lifestyle of a drug addict." Adams' mother was quoted as saying Adams was emotionally unstable and in need of psychiatric help. A police detective was quoted as saying that he had no doubt of Adams' involvement in two attempted murders, and that Adams should be "kept off the streets." ⁵

Adams' counsel conceded that the court could properly consider statements in the presentence report by a parole and probation officer having personal knowledge of Adams' heroin addiction, including Adams' recorded admission concerning that, but counsel objected to the court's consideration of hearsay in the report, especially its recorded statements by others concerning Adams' implication in two attempted murders. In finding a necessity for Adams' sentencing under Section 775.084, the court avoided explicit reliance on the report's attribution of attempted murder to Adams, saying

(T)he Court is going to find that sufficient information has been submitted to the Court to show that the protection of the public is warranted. I'm going to give you the basis of that in the event you want to seek further determination. I note that the prior conviction involved a violent crime, an armed robbery of a business place, and that he was subsequently released on parole, violated that parole after being offered an opportunity to participate in drugs (sic); That he was arrested and charged with another violent crime, assault to murder by the police officers. He was not formally charged by Information. Although he has entered a plea of guilty to the possession of heroin and the paraphernalia, which, as I see, is the one positive aspect with respect to that he claims that this was a frame even though he has admitted his guilt. The Court does feel that all those factors considered together, in addition to his prior record, that the protection of the public requires that enhanced penalty be considered. . . . (Emphasis supplied.)

The court sentenced Adams to concurrent ten year terms: five years for each third degree felony possession of narcotics and possession of narcotics paraphernalia, and five more years on each count under the habitual felony offender statute. ⁶

In Section 775.084 proceedings for an extended sentence, the issue over the use of hearsay in presentence investigation reports is framed by subsections (3)(a) and (c) of that statute:

(3) . . . The procedure shall be as follows:

(a) The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as an habitual felony offender or an habitual misdemeanant.

(c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.

Subsection 3(d) further provides:

(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.

What Section 775.084 does not say is whether one's "full rights of confrontation, cross-examination, and representation by counsel" are satisfied when the State produces no witness to testify concerning the defendant's criminal propensities, but relies instead on ex parte statements of potential witnesses as recorded in the presentence investigation report, most tellingly in the "confidential" section. ⁷

Subsections 3(a) and (c) must be reconciled in light of the distinction between the limited due process rights afforded the defendant during ordinary sentencing, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), and the greater measure of protection afforded him in extended sentence proceedings when, as here, an added sentence depends on a "new finding of fact . . . that was not an ingredient of the offense charged." Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). In Williams, the Supreme Court refused rights of confrontation and cross-examination to defendants being sentenced within statutory limits for their offenses, holding that to do so would lessen the value of independent reports to the court by probation officers. ⁸ In Specht, the Supreme Court held that undisclosed hearsay evidence in a presentence psychiatric report could not constitutionally be relied on by a court sentencing under the Colorado Sex Offenders Act, which the Court said made "one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill." 386 U.S. at 608, 87 S.Ct. at 1211, 18 L.Ed.2d at 329 (1967). The Court held that when the extended sentence depends on a new finding of fact, not an ingredient of the offense for which defendant is to be sentenced, due process requires that the defendant "be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own." Specht, 386 U.S. at 610, 87 S.Ct. at 1212, 18 L.Ed.2d at 330.

On its face, Specht apparently invalidates any extended sentencing statute under which contested hearsay in the presentence report may be relied on to support a "new charge" to the effect that the defendant is an habitual offender whose further imprisonment is necessary to protect the public against his further criminal activity. Section 775.084, Florida Statutes, is in this respect not substantially different from Colorado's statute, struck down by Specht. ⁹ Yet neither is it materially different from a federal statute, 18 U.S.C., Section 3575, which the courts of appeals have sustained against similar due process challenges. Under the federal Dangerous Special Offender statute, the first-stage question is whether defendant was in fact a "special offender," which is defined comparably to Florida's "habitual offender" classifications. Fn. 2, Supra. The federal second-stage inquiry, stated in Section 3575(f), is whether the defendant is "dangerous" in that "a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant."

Concerning the second-stage inquiry into the defendant's dangerousness under subsection (f), the federal courts of appeals hold that the due process clause does not preclude reliance on hearsay in presentence investigation reports. E. g., United States v. Neary, 552 F.2d 1184, 1192-93 (7th Cir. 1977), Cert. den., 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977),...