Ashley v. State

• Decision Date: 25 February 1993
• Docket Number: No. 79159,79159
• Court: Florida Supreme Court
• Parties: 18 Fla. L. Week. S127 Thomas ASHLEY, Petitioner, v. STATE of Florida, Respondent.

Page 486

614 So.2d 486

18 Fla. L. Week. S127

Thomas ASHLEY, Petitioner, v. STATE of Florida, Respondent.

No. 79159.

Supreme Court of Florida.

Feb. 25, 1993.

James B. Gibson, Public Defender and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.

SHAW, Justice.

We have for review Ashley v. State, 590 So.2d 27 (Fla. 5th DCA 1991), in which the court certified conflict with Inmon v. State, 383 So.2d 1103 (Fla.2d DCA), review denied, 389 So.2d 1111 (Fla.1980). We have jurisdiction. Art V, Sec. 3(b)(4), Fla.Const. We quash the decision in Ashley.

Based on an incident that took place October 29, 1989, Ashley was charged with battery on a correctional officer, a third-degree felony. On July 24, 1990, he entered a plea of nolo contendere, which was accepted, and three days later the State filed notice of intent to seek enhanced punishment as an habitual felony offender. See Sec. 775.084, Fla.Stat. (1989). Ashley unsuccessfully sought to withdraw his plea on August 29, and was sentenced October 31, 1990, to six years' imprisonment as an habitual felony offender. ¹ On appeal, he argued that his sentence was illegal because prior to entry of his plea the State failed to serve written notice of intent to habitualize. The district court affirmed, but certified conflict with Inmon, wherein the court indicated pre-plea notice is required for habitualization.

Ashley argues that notice is required prior to acceptance of a guilty or nolo plea under both Florida Rule of Criminal Procedure 3.172 and the habitual offender statute, section 775.084, Florida Statutes (1989). Failure to provide notice, he contends, violates the plain language of rule 3.172(c)(1), which requires that the defendant understand the "maximum possible penalty provided by law" before the court may accept his or her plea. Further, to read the habitual offender statute as the district court and State propose, i.e., that notice prior to entry of a plea is unnecessary as long as sufficient notice is given prior to sentencing, effectively strikes the words "prior to entry of a plea" from the statute. The State counters that no notice is required under the rule since habitualization is a collateral, not direct, consequence of the plea. The State also posits that the express purpose of the notice provision of the statute is to give the defendant time to prepare an argument against habitualization and as long as sufficient notice is given prior to sentencing this purpose is fulfilled. We disagree.

In Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court noted that "[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." A number of important federal rights are implicated in the plea process:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights....

Id. 395 U.S. at 243, 89 S.Ct. at 1712 (citations omitted). Before a trial judge can accept a plea of guilty or nolo contendere, there must be "an affirmative showing that it was intelligent and voluntary," id. at 242, 89 S.Ct. at 1711, for "[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." Id. at 243-44, 89 S.Ct. at 1712.

In keeping with Boykin, this Court has ruled that in order for a plea to be knowing and intelligent the defendant must understand the reasonable consequences of the plea, including the maximum penalty that may be imposed:

Second, a defendant must understand the nature of the charge and the consequences of his plea. The purpose of this requirement is to ensure that he knows what particular act he has committed, what law he has violated, and what maximum penalty may be imposed for the offense with which he is charged.

Williams v. State, 316 So.2d 267, 271 (Fla.1975). See also Koenig v. State, 597 So.2d 256 (Fla.1992). This ruling was memorialized two years later in rule 3.172, which now reads:

[3.172] (a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo contendere the trial judge shall be satisfied that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.

....

(c) Determination of Voluntariness. Except when a defendant is not present for a plea ... the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....

In re Amendments to the Fla. Rules of Criminal Procedure, 606 So.2d 227, 263 (Fla.1992). Accordingly, before a court may accept a guilty or nolo plea it must determine on the record that the defendant is aware of the "maximum possible penalty provided by law" that may be imposed for the crime.

Maximum penalties for most felonies are determined according to the sentencing guidelines, which establish recommended (and now, permitted) ranges of punishment. See Sec. 921.001, Fla.Stat. (1989); Fla.R.Crim.P. 3.701. A court may depart from these ranges only under exceptional circumstances, with adequate legal justification. Id. Both guidelines maximums and departure sentences are themselves superceded by statutory maximums, which cannot be exceeded. ² As a general rule, guidelines maximums fall short of statutory maximums.

As an alternative to guidelines sentencing, a court may impose an enhanced sentence pursuant to the habitual offender statute in those cases where the defendant meets certain requirements concerning prior convictions. See Sec. 775.084, Fla.Stat. (1989). Maximum sentences under this statute are roughly double the standard statutory maximums. ³ In addition to authorizing longer overall terms, the statute also ensures that defendants will serve a greater portion of their sentences by eliminating the possibility of early release through parole, or accrual of basic or meritorious gain-time or provisional credits. Secs. 775.084, 944.275, 944.277, Fla.Stat. (1989). Further, habitual violent felony offenders receive mandatory minimum terms. ⁴

Because habitual offender maximums clearly constitute the "maximum possible penalty provided by law"--exceeding both the guidelines and standard statutory maximums--and because habitual offender sentences are imposed in a significant number of cases, our ruling in Williams and the plain language of rule 3.172 require that before a court may accept a guilty or nolo plea from an eligible defendant it must ascertain that the defendant is aware of the possibility and reasonable consequences of habitualization. To state the obvious, in order for the plea to be "knowing," i.e., in order for the defendant to understand the reasonable consequences of his or her plea, the defendant must "know" beforehand that his or her potential sentence may be many times greater what it ordinarily would have been under the guidelines and that he or she will have to serve more of it. We note that this view is endorsed by courts, ⁵ commentators, ⁶ and the American Bar Association. ⁷

Consistent with this analysis under rule 3.172, the relevant portion of the habitual offender statute states unequivocally that before a defendant may enter a plea or be sentenced he or she must be given written notice of intent to habitualize:

Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.

Sec. 775.084(3)(b), Fla.Stat. (1987).

In Massey v. State, 609 So.2d 598, 600 (Fla.1992), we stated that "[t]he purpose of requiring a prior written notice is to ... give the defendant and the defendant's attorney an opportunity to prepare for the hearing." This is so that a knowing and intelligent plea may be entered, and in the case of sentencing, an argument against habitualization may be readied. The court in Inmon properly interpreted this provision to mean that "the State shall serve notice on the defendant either before he enters a plea of guilty or nolo contendere, or, in the event he enters a plea of not guilty and submits to trial, prior to the imposition of sentence." Inmon, 383 So.2d at 1104. In this way, the legislature has extended the general pre-plea notice requirement of rule 3.172 to include specific written notice of intent to habitualize.

In sum, we hold that in order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences ⁸ of habitualization.

In the present case, although Ashley failed to object to lack of notice at trial, no contemporaneous objection is required in order to preserve a purely legal sentencing issue. Taylor v. State, 601 So.2d 540 (Fla.1992). The requirement of rule 3.172 and section 775.084 concerning pre-plea...