Burdick v. State, 90-619
| Decision Date | 25 July 1991 |
| Docket Number | No. 90-619,90-619 |
| Citation | 584 So.2d 1035 |
| Parties | 16 Fla. L. Weekly D1963 Billy BURDICK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Raising several issues, Burdick seeks review of his convictions and sentences for two counts of grand theft of a firearm, grand theft and burglary of a dwelling while armed. Among his arguments on appeal, appellant urges that the trial court erred in failing to give written reasons for departing from the sentencing guidelines. He also asserts that the evidence adduced at trial was insufficient to exclude every reasonable hypothesis of innocence and to support his convictions for armed burglary and theft of firearms. Finding that the trial court was not required under the facts of the case to ascribe written reasons for the sentences he imposed and further that the evidence supports appellant's convictions, we affirm as to these points without further elaboration. While we also affirm as to the other issues raised, we believe appellant's supporting arguments are deserving of more extended comment.
After the jury found appellant guilty of armed burglary of a dwelling, the trial court sentenced him as an habitual felony offender to life in prison. On appeal, appellant argues (1) that the trial judge erred in concluding that the habitual felony offender statute required that appellant be sentenced to life in prison once the court made the decision to classify appellant as an habitual felony offender; (2) that he should not have been sentenced as an habitual felony offender because the substantive offense for which he was convicted is punishable by a life sentence; and (3) that the habitual felony offender statute is unconstitutional because it provides a greater penalty for an habitual felony offender convicted of a first degree felony than it does for an habitual violent felony offender also convicted of a first degree felony.
With respect to appellant's first argument, the record reflects that at the sentencing hearing, the state argued that if the court found that appellant was an habitual felony offender, it was required to sentence him to life in prison because he had been convicted of a first degree felony. Section 775.084(4)(a), Florida Statutes (Supp.1988), provides:
The court, in conformity with a procedure established in subsection (3), shall sentence the habitual felony offender as follows:
1. In the case of a felony of the first degree, for life.
Appellant suggests that a life sentence was discretionary rather than mandatory, relying upon language in a 1988 case, State v. Brown, 530 So.2d 51 (Fla.1988), in which the supreme court stated that the word "shall" in the 1985 version of this subsection "either was an editorial error or a misapprehension of actual legislative intent by the editors," and that the legislature actually intended that the life sentence be permissive rather than mandatory. Id. at 53. However, Brown involved the relationship between the new sentencing guidelines and the habitual offender statute, and the court essentially concluded that a trial judge could not exceed the guidelines recommendations simply on the basis of habitual offender status, therefore the life sentence in the habitual offender statute could not be construed as mandatory. Since that time, the legislature has provided that habitual offender sentencing is exempt from the sentencing guidelines.
This court recently held in Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990), that the trial court initially has discretion whether to sentence a defendant under the habitual felony offender statute or the guidelines, but that "[o]nce the court decides, however, to sentence a defendant as an habitual felony offender or habitual violent felony offender, then the court is required to impose sentence in conformity with sections 775.084(4)(a) or 775.084(4)(b)." Id. at 795 (emphasis added). We hold that because the trial court concluded that the habitual felony offender statute was applicable, it properly sentenced appellant to life in prison. Accord State v. Allen, 573 So.2d 170 (Fla. 2d DCA 1991).
Appellant next argues that because his conviction for burglary of a dwelling while armed is a first degree felony punishable by a term of years not exceeding life imprisonment pursuant to section 810.02(2), Florida Statutes (Supp.1988), then he cannot be punished under the habitual offender statute. This argument is predicated on some dicta in Barber v. State, 564 So.2d 1169 (Fla. 1st DCA 1990), review denied, 576 So.2d 284 (Fla.1991). There, Barber had argued that the statute does not bear a reasonable relationship to a legitimate state interest because the most dangerous offenders are excluded from enhanced sentencing by virtue of the fact that "[a] person cannot be sentenced as a habitual felony offender if his offense is classified as a first degree felony punishable by life, a life felony, or a capital offense." This court responded to the argument by stating that "[a]lthough subsection (4) makes no provision for enhancing sentences if the original sentence falls into one of the above categories," this was not a violation of the equal protection clause because the "legislature may have determined that these punishments are already sufficiently severe to keep the felon in prison for an extended period of time." Therefore, as appellant here argues, this court assumed that the habitual offender statute did not apply to felonies punishable by life imprisonment.
We find Barber not to be controlling in the instant case. Barber was convicted of escape, a second-degree felony, therefore this court was not specifically considering the enhancement of a sentence for a first-degree felony, as in the case at bar. Moreover, the habitual offender statute addressed in Barber was the 1987 version which was substantially rewritten by the Florida Legislature in 1988 to take penalties prescribed under the statute outside the umbrella of the sentencing guidelines and to allow the trial court to impose the penalty of life imprisonment on a defendant by simply making a determination that the defendant fit the statutory definition of an habitual felony offender. Westbrook v. State, 574 So.2d 1187 (Fla. 3d DCA 1991). In essence, appellant here asks us to judicially amend Section 775.081 Florida Statutes to add another classification of felonious crime, that of "first degree felony punishable by life". We decline appellant's invitation and, in doing so, observe that a first degree felony, no matter what the punishment imposed by the substantive law that condemns the particular criminal conduct involved, is still a first degree felony and subject to enhancement by Section 775.084(4)(a)(1), Florida Statutes.
In Paige v. State, 570 So.2d 1108 (Fla. 5th DCA 1990), the Fifth District reached the same conclusion. In that case, the appellants were convicted for kidnapping, which is also a first degree felony punishable by a sentence not exceeding life imprisonment "or as provided in ... s. 775.084." Id. at 1108 (quoting s. 787.01(2) Fla.Stat.1989). Appellants claimed that the trial court erred in applying the habitual offender statute because life sentences are not subject to habitual offender enhancement. The court disagreed, stating that "[s]ince kidnapping is a first-degree felony, appellants' sentences therefor can be enhanced pursuant to section 775.084" but that a life felony cannot be enhanced. Id. at 1109. See also Tucker v. State, 576 So.2d 931 (Fla. 5th DCA 1991). Similarly, in the case at hand, appellant was convicted of a first degree felony rather than a life felony. The maximum sentence for armed burglary is a life sentence but it is not the only sentence. Therefore, we find that the trial court properly applied section 775.084.
Lastly, appellant urges that the habitual offender statute is unconstitutional because of what he perceives to be impermissibly disparate treatment among and between persons upon whom the statute operates. He argues that Section 775.084 provides for a greater penalty for an habitual felony offender convicted of a first degree felony than for an habitual violent felony offender who commits a first-degree felony because the latter may become eligible for parole while the former may not. While such an argument may have some superficial appeal, more indepth analysis persuades us that appellant's contention in this regard is flawed and thus unavailing.
Section 775.084(4)(b) provides the same enhanced sentences for habitual violent felony offenders as for habitual offenders, but in addition expressly states that violent offenders are not eligible for release for specified minimum terms (15 years for first degree felonies). We acknowledge that this language can be construed to implicitly authorize release for violent felony offenders sentenced to life after they have served the minimum sentence. However, Section 775.084(4)(e) provides:
The provisions of Chapter 947 shall not be applied to such person. A defendant sentenced under this section shall not be eligible for gain-time granted by the Department of Corrections except that the Department may grant up to 20 days of incentive gain-time each month as provided for in section 944.275(4)(b).
Chapter 947 deals with parole. Section 944.275(2)(a) permits incentive gain-time under subsection (4)(b) only for prisoners "sentenced to a term of years". Thus, prisoners sentenced to life are not eligible. Therefore, by construing subsections (4)(a), (b), and (e) ...
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Raulerson v. State, 90-3801
...life may be enhanced under Section 775.084, Florida Statutes (1989), has been decided adversely to appellant in Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA 1991) (en banc), petition for review filed, No. 78466 (Fla. Aug. 20, 1991). The third issue, whether the violent-felony provisions o......
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