Booth v. State, 94-1268
| Decision Date | 07 April 1995 |
| Docket Number | No. 94-1268,94-1268 |
| Citation | 654 So.2d 571 |
| Parties | 20 Fla. L. Weekly D858 Johnny BOOTH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Michael D. Crotty, Asst. Atty. Gen., Daytona Beach, for appellee.
Booth appeals from a judgment and sentence for resisting an officer with violence. 1 He pled guilty after entering into a plea agreement and entering into a dialogue with the trial judge. Subsequently, the court served notice on Booth that it intended to hold a hearing to sentence Booth as an habitual offender. Booth moved to withdraw his plea, which the trial judge denied. He adjudicated Booth guilty and sentenced him as an habitual felony offender. We vacate the sentence and remand for further proceedings.
The plea agreement in this case simply raised the possibility that Booth might be sentenced as an habitual offender. It provided:
e. That a hearing may hereafter be set and conducted in this case to determine if I qualify to be classified as a Habitual Felony Offender or a Violent Habitual Felony offender, and:
(1) That should I be determined by the Judge to be a Violent Habitual Felony Offender, and should the Judge sentence me as such, I could receive up to a maximum sentence of 10 years imprisonment and a mandatory minimum of 5 years imprisonment and that as to any habitual offender sentence I would not be entitled to receive any basic gain time.
(2) That should I be determined by the Judge to be a Non-Violent Habitual Felony Offender, and should the Judge sentence me as such, I could receive up to a maximum sentence of 10 years imprisonment and a mandatory minimum of years imprisonment and that as to any habitual offender sentence I would not be entitled to receive any basic gain time.
Further, at the plea hearing, the judge asked Booth if he understood he could receive a sentence up to those maximum set forth in paragraphs 4(a) through (c) of the agreement, if Booth were found to be an habitual offender. Booth replied, "Yes." However, there was never any indication that the trial judge or the prosecution intended to pursue an habitual offender sentence.
A hearing was held on Booth's motion to withdraw his plea. He testified he did not think he would be sentenced as an habitual offender and that he entered his plea based on that understanding. He admitted he knew it was possible he could be found to be an habitual offender, but at the time he entered his plea, he did not think a hearing on that issue would be held.
This court has interpreted Ashley v. State, 614 So.2d 486 (Fla.1993) as requiring that a defendant be made aware, prior to entering a plea, either that the state intends to seek habitual offender treatment, or that the court intends to do so. Thomspon v. State, 638 So.2d 116 (Fla. 5th DCA 1994). Giving notice that the possibility exists that a defendant may be sentenced as an...
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State v. Booth
...Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Respondent. SHAW, Justice. We have for review Booth v. State, 654 So.2d 571 (Fla. 5th DCA 1995), based on conflict with Ashley v. State, 614 So.2d 486 (Fla.1993). We have jurisdiction. Art. V, § 3(b)(3), Fla. Our decisi......
- State v. Booth