Barber v. State, No. 89-2385

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN
Citation564 So.2d 1169
Decision Date16 July 1990
Docket NumberNo. 89-2385
Parties15 Fla. L. Weekly D1841 Earl Jeffrey BARBER, Appellant, v. STATE of Florida, Appellee.

Page 1169

564 So.2d 1169
15 Fla. L. Weekly D1841
Earl Jeffrey BARBER, Appellant,
v.
STATE of Florida, Appellee.
No. 89-2385.
District Court of Appeal of Florida,
First District.
July 16, 1990.

Page 1170

Cheryl L. Gentry, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Appellant, Earl Jeffrey Barber, was found guilty of escaping from the Tallahassee Community Center on September 25, 1988. The trial court sentenced him within the sentencing guidelines and pursuant to Section 775.084, Florida Statutes (1987), because the court determined he was a habitual felony offender. Barber contends on appeal that section 775.084 is facially unconstitutional because it violates the guarantees of equal protection and due process. We disagree and affirm.

EQUAL PROTECTION

Barber claims that the statute violates the equal protection clause because nothing in the law prevents two defendants with similar or identical criminal records from being treated differently--one may be classified as a habitual felony offender, while the other might instead be sentenced under the sentencing guidelines alone. His argument is based upon section 775.084(1)(a), in which a habitual felony offender is defined as "a defendant for whom the court may impose an extended term of imprisonment, as provided in this section." (Emphasis added.)

The United States Supreme Court, however, has held on numerous occasions 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. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604, 611 (1978); Oyler v. Boles, 368 U.S. 448, 455-56, 82 S.Ct. 501, 505-06, 7 L.Ed.2d 446, 452-53 (1962). Consequently, Barber has not raised a cognizable claim. 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. Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668-69, 54 L.Ed.2d at 611; Oyler, 368 U.S. at 456, 82 S.Ct. at 506, 7 L.Ed.2d at 453. "The mere failure to prosecute all offenders is no ground for a claim of denial of equal protection." Bell v. State, 369 So.2d 932, 934 (Fla.1979). Accord Owen v. State, 443 So.2d 173, 175 (Fla. 1st DCA 1983) (reverse sting operation that was conducted only when over fifty pounds of marijuana

Page 1171

was involved, was not an arbitrary classification comparable to the unjustifiable selection of criminal defendants based upon race or religion, and therefore did not deny equal protection).

Similarly, the executive branch is properly given the discretion to choose which available punishments to apply to convicted offenders. See, e.g., United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (no equal protection violation because prosecutor has discretion to choose which of two statutes with identical elements to prosecute defendant under, and which penalty scheme to apply to defendant); Sullivan v. Askew, 348 So.2d 312 (Fla.) (constitutional rights of prisoner who seeks clemency from a death sentence are not offended by the unrestricted discretion vested in the executive), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (both holding that the constitution is not violated by exercise of prosecutor's discretion in deciding to charge one with a capital offense or to accept a plea to a lesser offense, nor by executive's exercise of discretion in commuting a death sentence).

DUE PROCESS
A

Barber claims that section 775.084 violates his right to due process because the process it establishes is unreasonable, arbitrary, and capricious. State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986) ("the means selected shall have a reasonable and substantial relation to the object sought to be attained and shall not be unreasonable, arbitrary, or capricious.") He reasons that the law is arbitrary and capricious because (a) the statute does not contain a method for determining who the law should be applied to, as opposed to applying the sentencing guidelines alone; and (b) the law has no method for determining who--either the prosecutor or the trial court--must decide whether to apply the law to a defendant; therefore the prosecutor has unfettered discretion in applying the law arbitrarily and capriciously. These arguments are not persuasive for the following reasons.

The legislative purpose underlying this law is proper, as are the means the legislature has chosen to achieve its goal. The legislature chose to restrict the class of felons encompassed by section 775.084, based upon the number of prior felonies and misdemeanors committed, and based upon the length of time since the defendant committed the last crime. It is apparent that the legislature intended to enact this law in the belief that increased sentences for repeat offenders will deter their criminal conduct, at least during the time that they are incarcerated. There can be no question that enhanced punishment of repeat felons is a legitimate goal within the state's police power. A state "may inflict a...

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82 practice notes
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...prior criminal records of habitual crimes receive greater punishment than others. As recognized by the First District in Barber v. State, 564 So.2d 1169, 1171 (Fla. 1st DCA) rev. denied 576 So.2d 284 The legislature chose to restrict the class of felons encompassed by section 775.084, based......
  • London v. State, No. 92-2048
    • United States
    • Court of Appeal of Florida (US)
    • June 24, 1993
    ...Arnold v. State, 566 So.2d 37 (Fla. 2d DCA 1990) (due process, equal protection), rev. denied, 576 So.2d 284 (Fla.1991); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA) (due process, equal protection), rev. denied, 576 So.2d 284 (Fla.1990); Roberts v. State, 559 So.2d 289 (Fla. 2d DCA 1990) ......
  • Conley v. State, No. 90-1745
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 1992
    ...under the statute, when another defendant charged with identical offenses may not be. This argument was rejected in Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied, 576 So.2d 284 (Fla.1990), regarding the 1987 statute. He also claims the statute violates the prohibition agains......
  • Johnson v. State, No. 91-742
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 1991
    ...1038 (Fla.1991); Smith v. State, 573 So.2d 1015 (Fla. 1st DCA 1991); Akbar v. State, 570 So.2d 1047 (Fla. 1st DCA 1990); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied, 576 So.2d 284 (Fla.1990); Arnold v. State, 566 So.2d 37 (Fla. 1st DCA 1990), review denied, 576 So.2d 284 (......
  • Request a trial to view additional results
82 cases
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...prior criminal records of habitual crimes receive greater punishment than others. As recognized by the First District in Barber v. State, 564 So.2d 1169, 1171 (Fla. 1st DCA) rev. denied 576 So.2d 284 The legislature chose to restrict the class of felons encompassed by section 775.084, based......
  • London v. State, No. 92-2048
    • United States
    • Court of Appeal of Florida (US)
    • June 24, 1993
    ...Arnold v. State, 566 So.2d 37 (Fla. 2d DCA 1990) (due process, equal protection), rev. denied, 576 So.2d 284 (Fla.1991); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA) (due process, equal protection), rev. denied, 576 So.2d 284 (Fla.1990); Roberts v. State, 559 So.2d 289 (Fla. 2d DCA 1990) ......
  • Conley v. State, No. 90-1745
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 1992
    ...under the statute, when another defendant charged with identical offenses may not be. This argument was rejected in Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied, 576 So.2d 284 (Fla.1990), regarding the 1987 statute. He also claims the statute violates the prohibition agains......
  • Johnson v. State, No. 91-742
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 1991
    ...1038 (Fla.1991); Smith v. State, 573 So.2d 1015 (Fla. 1st DCA 1991); Akbar v. State, 570 So.2d 1047 (Fla. 1st DCA 1990); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied, 576 So.2d 284 (Fla.1990); Arnold v. State, 566 So.2d 37 (Fla. 1st DCA 1990), review denied, 576 So.2d 284 (......
  • Request a trial to view additional results

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