Barnes v. State

• Decision Date: 22 February 1991
• Docket Number: No. 89-3287,89-3287
• Citation: 576 So.2d 758,16 Fla. L. Weekly 562
• Parties: 16 Fla. L. Weekly 562 Anthony T. BARNES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 758

576 So.2d 758

16 Fla. L. Weekly 562

Anthony T. BARNES, Appellant, v. STATE of Florida, Appellee.

No. 89-3287.

District Court of Appeal of Florida First District.

Feb. 22, 1991.

Rehearing Denied April 9, 1991.

Barbara M. Linthicum, Public Defender and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

Before the Court en banc.

MINER, Judge.

Anthony T. Barnes seeks reversal of his enhanced sentence as an habitual felony offender following his convictions for battery and grand theft auto. He argues two points on appeal: (1) that the 1988 version of the habitual offender statute is unconstitutional, and (2) that he did not qualify as an habitual felony offender because his only two prior convictions occurred on the same date. Because we find merit in this latter argument, we must reverse appellant's habitual offender sentence without proceeding to his constitutional challenge.

The record reveals that appellant was found guilty of battery and grand theft auto, both of which he committed on May 28, 1989. The state filed notice of its intent to have appellant sentenced as an habitual felony offender based upon a pair of previous felonies. At the sentencing hearing, it was revealed that the two previous felonies were committed only days apart in September 1987. Although they were charged separately, appellant pled guilty or nolo contendere to both offenses on the same day, and was subsequently sentenced for both felonies at one sentencing hearing.

At trial, appellant argued that his prior felonies were not a proper basis for habitualization. Appellant cited a long line of authority holding that, in order to count as a previous offense for purposes of habitualization, each offense must follow a conviction for the immediately previous offense; in short, there must be a sequence of offense and conviction followed by a second offense and a second conviction, and so on. According to appellant, the state could not establish such a sequence because both of his previous felonies were committed prior to conviction for his first offense. The state responded by arguing that the long line of authority cited by appellant was inapplicable to the 1988 version of the habitual offender statute. According to the state, the 1988 statute made no mention of sequential convictions, but only required a finding that appellant had "previously been convicted of two or more felonies." § 775.084(1)(a)1, Fla.Stat. (Supp.1988). The trial court was persuaded that appellant, having been previously convicted of two felonies, met the definition of an habitual offender regardless of the sequence by which his convictions were obtained.

In their thorough briefing of this issue, counsel have covered over forty years of Florida's experience with habitual offender provisions. Appellant begins by citing Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947), in which the supreme court, interpreting an early version of the habitual offender statute, held that except for the first and earliest conviction, each successive conviction relied upon to habitualize a defendant must be for an offense committed after the immediately previous conviction. Appellant quotes Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979), for its clear explanation of the rule:

[I]t is the established law of this state, as well as the overwhelming weight of authority throughout the country, that, when the statute requires two or more convictions as a prerequisite to an enhanced sentence on a present case, the defendant must have committed the second offense subsequent to his conviction on the first offense. Two or more prior convictions rendered on the same day are, therefore, treated as one offense for purposes of such a provision in a habitual criminal statute.

Id. at 266. This "sequential conviction requirement," which appellant terms the Joyner-Shead principle, necessitated that each of the prior offenses be separated by a conviction. Appellant stresses that this rule, rather than being based upon the precise language of a specific habitual offender provision, was premised upon the belief that such statutes "contemplated that an opportunity for reformation ... be given after each conviction." Joyner, 30 So.2d at 306. Thus, appellant notes, the sequential conviction requirement has been applied throughout the years to all versions of the statute, including the 1988 version at issue in Taylor v. State, 558 So.2d 1092 (Fla. 5th DCA 1990), and in Walker v. State, 567 So.2d 546 (Fla. 2d DCA 1990).

Appellee argues that reliance upon Joyner and its progeny is misplaced because, stated simply, the 1988 habitual offender statute is worded differently than all of its predecessors. Appellee points out that it was the 1941 version of the habitual offender provision at issue in Joyner. That provision, which came into existence in 1927 and continued in effect through 1971, included a two-tiered scheme for punishing habitual felons. Contrary to appellant's suggestion that the sequential conviction requirement was not based upon statutory language, appellee points out that the requirement has its origins in the language of the lower tier, where enhanced penalties were authorized upon conviction for a felony offense if the defendant committed the offense "after having been convicted ... of a felony." § 775.09, Fla.Stat. (1941). Because sequential convictions were clearly required in the lower tier, it was only logical to extend the sequencing to the upper tier where enhanced penalties were authorized upon conviction for a felony offense if the defendant committed the offense "after having been three times convicted ... of felonies." § 775.10, Fla.Stat. (1941). In fact, appellee cites language in Joyner which indicates that the sequential conviction requirement originated in precisely this fashion, and that Joyner simply extended the sequence into the upper tier. ¹

Appellee argues that because the sequential conviction requirement originated in the two-tiered habitual offender scheme, the demise of the scheme in 1972 should have brought with it a departure from Joyner and the sequential conviction requirement. Although appellee notes that the supreme court has not addressed the requirement since the demise of the

two-tiered scheme, various district courts, including the Third District in Shead, supra, have continued to require sequential convictions on the authority of Joyner. According to appellee, the plain meaning of the 1988 statute does not require sequential convictions because it authorizes enhanced sentences for defendants who had "previously been convicted of two or more felonies." § 775.084(1)(a)1, Fla.Stat. (Supp.1988). This language does not require separate convictions or that there be some gap between the offenses, but merely demands that the habitualized defendant be someone who has previously been found to have committed at least two felonies.

We agree with appellee that the sequential conviction requirement derived from the old, two-tiered habitual offender provision. We disagree with appellee's conclusion, however, that the requirement should have disappeared when the two-tiered system was discarded. From the time the two-tiered scheme was abandoned in 1972, up until the adoption of the 1988 version, it was at least open to question whether sequential convictions were required. As originally promulgated, section 775.084, authorized the imposition of habitual offender sanctions upon the defendant's second felony conviction. § 775.084(1)(c)-(d), Fla.Stat. (1971). It was reasonable, and in keeping with the majority rule in other jurisdictions, to interpret the new provision to require sequential convictions as did its predecessor, section 775.09; both statutes imposed habitual offender status upon the defendant's second conviction. After 1975, section 775.084 imposed habitual offender status upon defendants who had "previously been convicted of a felony" or had "twice previously been convicted of a misdemeanor." § 775.084(1)(a)1, Fla.Stat. (1987). Although this represented a further departure from the two-tiered scheme, there was still room for the sequential conviction requirement. ² It was proper to require sequential convictions where habitualization was based upon a single prior felony conviction because, in addition to the reasons mentioned above, the sequential conviction requirement insured that the defendant had an opportunity to reform following his initial felony conviction. See Snowden v. State, 449 So.2d 332, 338 (Fla. 5th DCA 1984), quashed on other grounds, 476 So.2d 191 (Fla.1985). Where habitualization was based upon misdemeanors, it was at least implicit in the language "twice previously convicted" that the offenses be committed separately and that the convictions be obtained in separate proceedings. See Shead, supra.

Section 775.084 underwent extensive amendment in 1988. As amended, the statute permits habitualization where "[t]he defendant has previously been convicted of two or more felonies in this state." § 775.084(1)(a)1, Fla.Stat. (Supp.1988). Unlike the earlier language which appeared to require that the convictions be obtained on two separate occasions, nothing in the amended version suggests that the offenses be separated in time or that the convictions be obtained in separate proceedings. Appellant is within the plain meaning of this language as he had previously been convicted of the requisite number of felonies at the time he committed the principal offense. Although appellee would have us end our inquiry at this point and affirm appellant's enhanced sentence, we must further inquire whether obvious legislative intent mandates an interpretation exceeding the literal language of the statute. Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099, 1102 (Fla.1989); see State v. Webb, 398 So.2d 820, 824 ...