Brown v. State, 90-3048

• Decision Date: 04 December 1992
• Docket Number: No. 90-3048,90-3048
• Citation: 609 So.2d 730
• Parties: 17 Fla. L. Weekly D2736 Thad McGillery BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 730

609 So.2d 730

17 Fla. L. Weekly D2736

Thad McGillery BROWN, Appellant, v. STATE of Florida, Appellee.

No. 90-3048.

District Court of Appeal of Florida First District.

Dec. 4, 1992.

Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

Appellant seeks review of his sentence as an habitual felony offender, asserting the evidence introduced at the sentencing hearing was legally insufficient to support the trial court's finding that he qualified as an habitual felony offender. The state seeks dismissal, urging the court lacks subject matter jurisdiction, because appellant pled nolo contendere without reservation of right to appeal. Alternatively, the state urges dismissal on the ground that appellant did not raise the instant issue at the sentencing proceeding. We deny the motion to dismiss, and reverse and remand for resentencing.

In July 1989, appellant pled no contest to possession of cocaine and drug paraphernalia, and driving with a suspended license. He was adjudicated guilty and placed on community control for sixty days, to be followed by a probationary term of four and one-half years. In August 1990, an affidavit of violation of probation was filed against appellant, alleging he committed grand theft and driving under the influence. In September 1990, appellant was charged by information with the commission of two counts of grand theft in March 1990. Pursuant to a plea agreement, appellant pled no contest to violation of probation and to the two counts of grand theft, in exchange for a sentence of four and one-half years as an habitual felony offender, with no probation.

At sentencing on September 14, 1990, the state offered evidence that appellant had a 1976 North Carolina conviction for breaking and entering. The trial court found appellant met the criteria for habitual felony offender sentencing, on the basis of the 1989 Florida conviction, and the 1976 North Carolina conviction. The trial court further found that neither conviction had been set aside, and appellant had not received a pardon on either offense. When appellant asked whether he could be sentenced to a straight sentence rather than as an habitual felony offender, the trial court advised that sentence would be imposed in accordance with the plea agreement. Appellant was adjudicated guilty and sentenced to concurrent terms of four and one-half years as an habitual felony offender, for the two counts of grand theft. His probation for the 1989 possession offenses was revoked, and he was sentenced to a three and one-half year non-habitual offender term of incarceration for the possession charge, the sentence to run concurrently with the habitual offender sentences.

Appellant contends he should not have been sentenced as an habitual felony offender, because his North Carolina conviction did not constitute a valid prior conviction at the time the sentence was imposed. We agree. The habitual offender statute, section 775.084, Florida Statutes, was amended in 1989, to authorize classification as an habitual felon for two prior felonies committed in this state or qualified offenses of any other jurisdiction. ¹ Under the pre-amended version of the statute, habitual felony offender sentencing required an initial finding that the "defendant has previously been convicted of two or more felonies in this state." See Sec. 775.084(1)(a)1, Fla.Stat. (1987) (emphasis supplied). See also Flewelling v. State, 576 So.2d 742 (Fla. 1st DCA 1991); Parrish v. State, 571 So.2d 97, 98 (Fla. 1st DCA 1990).

The legislative act which amended the prior habitual felony offender law was found to be constitutionally infirm during the period of time within which appellant committed the offenses for which habitual felony offender sentencing was imposed. See Johnson v. State, 589 So.2d 1370 (Fla. 1st DCA 1991), review pending, S.Ct. No. 79, 204. In Johnson, which was decided after the sentencing in this case, the court held that Chapter 89-280, Laws of Florida, which amended section 775.084, violated the single subject rule of the Florida Constitution. See Art. III, Sec. 6, Fla. Const. The time period of the questioned validity of the statute is from the October 1, 1989, effective date of the 1989 amendments to the habitual offender provisions, and the July 1, 1991, effective date of their re-enactment as part of the Florida Statutes. See Ch. 91-44, Laws of Fla.

If the offense for which an habitual offender sentence is to be imposed occurred between October 1989 and July 1, 1991, the time frame within which the constitutionality of the habitual offender law is in question, the offender cannot be sentenced as an habitual offender unless he or she meets the criteria for habitual offender under the pre-amended version of the statute. See King v. State, 585 So.2d 1199 (Fla. 1st DCA 1991). In other words, as a predicate for habitual offender sentencing as it existed before the 1989 amendments, the state was required to establish that the offender had two or more prior Florida convictions.

In the instant case, the offenses for which appellant was being sentenced were committed in March 1990, within the window of time that the constitutionality of the 1989 amended version of the habitual offender statute is in question. The convictions relied upon for imposition of habitual felony offender sentencing were the 1989 Florida conviction and the 1976 North Carolina conviction. Since these prior convictions did not meet the threshold requirement of two or more previous felony convictions in this state, see Sec. 775.084(1)(a)1, Fla.Stat. (1987), appellant did not qualify for habitual offender sentencing under the pre-amended statute.

The state recognizes that, in light of the court's decision in Johnson, appellant has raised a valid challenge to his habitual felony offender sentence. Nevertheless, the state seeks dismissal on procedural grounds, arguing that the court lacks subject matter jurisdiction because appellant pled nolo contendere without reservation. The state also urges that appellant did not raise the single subject issue before the trial court, so is precluded from raising the issue on appeal. We reject both arguments for dismissal. With respect to the jurisdictional question, one who pleads nolo contendere or guilty without an express reservation of right to appeal, is not barred from maintaining a direct appeal on the following limited class of issues which occur contemporaneously with entry of the plea: (1) subject matter jurisdiction, (2) illegality of the sentence, (3) government's failure to abide by the terms of the plea bargain, and (4) voluntary and intelligent character of the plea. Robinson v. State, 373 So.2d 898, 902 (Fla.1979). See also Simmons v. State, 596 So.2d 1156 (Fla. 1st DCA 1992); Pyle v. State, 596 So.2d 744 (Fla. 1st DCA 1992); Ford v. State, 575 So.2d 1335, 1337 (Fla. 1st DCA), review denied, 581 So.2d 1310 (Fla.1991). Further, a criminal defendant cannot, by virtue of a plea bargain, confer upon a court the authority to impose an illegal sentence. Larson v. State, 572 So.2d 1368, 1370 (Fla.1991). Consequently, the fact that appellant's sentences as an habitual offender were the result of a plea bargain would not preclude him from contesting the legality of the sentence. With respect to the state's argument that a single subject challenge cannot be raised for the first time on appeal, this point was addressed definitively in Claybourne v. State, 600 So.2d 516 (Fla. 1st DCA 1992), and decided adversely to the state's position.

Although neither party to this appeal has...