Anderson v. State, No. 90-647

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS; JOANOS
Citation592 So.2d 1119
Parties16 Fla. L. Weekly D3024 Willie ANDERSON, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 90-647
Decision Date03 December 1991

Page 1119

592 So.2d 1119
16 Fla. L. Weekly D3024
Willie ANDERSON, Appellant,
v.
STATE of Florida, Appellee.
No. 90-647.
District Court of Appeal of Florida,
First District.
Dec. 3, 1991.
On Motion for Rehearing Feb. 13, 1992.

Nancy A. Daniels, Public Defender, and Carol Ann Turner, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

Willie Lee Anderson has appealed from sentencing as an habitual felony offender, following his conviction by jury of four counts each of sale of cocaine and possession of cocaine with intent to sell. We reverse and remand for resentencing.

Following Anderson's conviction, the state filed notice of its intent to seek habitual felony offender classification. At the sentencing proceeding, the state offered as predicate convictions two prior felony convictions, which Anderson conceded were his. Based thereon, the court held that Anderson qualified as an habitual felony offender, and sentence was imposed accordingly. However, the trial court made no finding that the predicate convictions had not been pardoned or set aside, as required by section 775.084(1)(a)3. and 4., Florida Statutes (1989).

Anderson contends first that section 775.084, Florida Statutes (1989) is unconstitutional,

Page 1120

in that the prosecutor's discretion to decide who among qualifying defendants will receive habitual offender treatment deprives him of equal protection of the laws, and infringes on the courts' power to impose punishment. He next argues that the classification must be reversed based on the trial court's failure to make all of the findings required by section 775.084(1)(a).

Anderson's constitutional arguments are without merit. The issue of prosecutorial discretion was addressed in Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied 576 So.2d 284 (Fla.1990). Barber held that the guarantee of equal protection is not violated when prosecutors are given the discretion by law to "habitualize" only some of those criminals who are eligible, even though their discretion is not bound by statute. Mere selective, discretionary application of a statute is permissible; only a contention that persons within the habitual offender class are being selected according to some unjustifiable standard, such as race, religion, or other arbitrary classification, would raise a potentially viable challenge. Barber at 1170 (emphasis in original). Barber addressed the separation of power issue as well, holding that "the executive branch is properly given the discretion to choose which available punishments to apply to convicted offenders." Barber at 1171.

The trial court's failure to make the findings required by section 775.084(1)(a) is, however, reversible error, even in the absence of objection. Rolle v. State, 586 So.2d 1293 (Fla. 4th DCA 1991), citing Parker v. State, 546 So.2d 727 (Fla.1989) and Walker v. State, 462 So.2d 452 (Fla.1985). Anderson's sentence...

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33 practice notes
  • Spriggs v. State, No. 91-1199
    • United States
    • Court of Appeal of Florida (US)
    • March 17, 1993
    ...of pardon or a vacation of the judgment of conviction, relying on the First District's decision to that effect in Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991), quashed, 613 So.2d 465 Before Baskerville, we had not discussed an HFO sentence arising expressly from a plea agreement th......
  • Hierro v. State, No. 90-2098
    • United States
    • Court of Appeal of Florida (US)
    • November 17, 1992
    ...Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992) (question certified), review pending, No. 79,728 (Fla.1992); and Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991) (question certified), review pending, No. 79,535 (Fla.1992), with Baxter v. State, 599 So.2d 721 (Fla. 2d DCA 1992) (conf......
  • Fuller v. State, No. 90-2421
    • United States
    • Court of Appeal of Florida (US)
    • October 9, 1992
    ...court has previously found the failure to make such findings reversible error, even in the absence of an objection. Anderson v. State, 592 So.2d 1119, 1120 (Fla. 1st DCA 1991), petition for review filed, No. 79,535 (Fla. Mar. 16, 1991); Hodges v. State, 596 So.2d 481, 482 (Fla. 1st DCA 1992......
  • Brazil v. State, No. 91-1796
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...e.g., Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992); Merriweather v. State, 593 So.2d 1218 (Fla. 1st DCA 1992); Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991); Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA), review granted, 590 So.2d 421 (Fla.1991); Pittman v. State, 570 So.2d ......
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33 cases
  • Spriggs v. State, No. 91-1199
    • United States
    • Court of Appeal of Florida (US)
    • March 17, 1993
    ...of pardon or a vacation of the judgment of conviction, relying on the First District's decision to that effect in Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991), quashed, 613 So.2d 465 Before Baskerville, we had not discussed an HFO sentence arising expressly from a plea agreement th......
  • Hierro v. State, No. 90-2098
    • United States
    • Court of Appeal of Florida (US)
    • November 17, 1992
    ...Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992) (question certified), review pending, No. 79,728 (Fla.1992); and Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991) (question certified), review pending, No. 79,535 (Fla.1992), with Baxter v. State, 599 So.2d 721 (Fla. 2d DCA 1992) (conf......
  • Fuller v. State, No. 90-2421
    • United States
    • Court of Appeal of Florida (US)
    • October 9, 1992
    ...court has previously found the failure to make such findings reversible error, even in the absence of an objection. Anderson v. State, 592 So.2d 1119, 1120 (Fla. 1st DCA 1991), petition for review filed, No. 79,535 (Fla. Mar. 16, 1991); Hodges v. State, 596 So.2d 481, 482 (Fla. 1st DCA 1992......
  • Brazil v. State, No. 91-1796
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...e.g., Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992); Merriweather v. State, 593 So.2d 1218 (Fla. 1st DCA 1992); Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991); Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA), review granted, 590 So.2d 421 (Fla.1991); Pittman v. State, 570 So.2d ......
  • Request a trial to view additional results

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