Burdick v. State, No. 78466

CourtUnited States State Supreme Court of Florida
Writing for the CourtBARKETT; SHAW; OVERTON; OVERTON
Citation594 So.2d 267
PartiesBilly BURDICK, Petitioner, v. STATE of Florida, Respondent. 594 So.2d 267, 17 Fla. L. Week. S88
Decision Date06 February 1992
Docket NumberNo. 78466

Page 267

594 So.2d 267
Billy BURDICK, Petitioner,
v.
STATE of Florida, Respondent.
No. 78466.
594 So.2d 267, 17 Fla. L. Week. S88
Supreme Court of Florida.
Feb. 6, 1992.
Rehearing Denied March 25, 1992.

John L. Miller of Johnson, Green & Locklin, P.A., Milton, for petitioner.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Chief, Bureau of Criminal Appeals, Senior Assistant Atty. Gen. and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for respondent.

James T. Miller, Jacksonville, amicus curiae for Florida Ass'n of Criminal Defense Lawyers (FACDL).

Arthur I. Jacobs, Fernandina Beach, amicus curiae for Florida Prosecuting Attorneys Ass'n, Inc.

BARKETT, Justice.

We review Burdick v. State, 584 So.2d 1035, 1039 (Fla. 1st DCA 1991), in which the district court certified the following two questions of great public importance: 1

[1.] Is a life sentence permissive or mandatory under the 1988 amendment to section 775.084(4)(a)1, Florida Statutes?

[2.] Is a first degree felony punishable by a term of years not exceeding life imprisonment subject to an enhanced sentence of life imprisonment pursuant to the provisions of the habitual felony offender statute?

We answer the first question by holding that sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive,

Page 268

not mandatory. We answer the second question in the affirmative. 2

Petitioner Billy Burdick was convicted, among other offenses, 3 of armed burglary of a dwelling, a first-degree felony punishable by life imprisonment. 4 Burdick was sentenced as a habitual felony offender under section 775.084(4)(a)(1), Florida Statutes (1989), to a term of life imprisonment. The district court affirmed the sentence, but recognizing the potential conflict with State v. Brown, 530 So.2d 51 (Fla.1988), certified the two questions at issue. We address the second certified question first.

The threshold question in this case is whether first-degree felonies punishable by life imprisonment are subject to enhancement under the habitual offender statute. That statute provides in relevant part:

(4)(a) The court, in conformity with the 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.

2. In the case of a felony of the second degree, for a term of years not exceeding 30.

3. In the case of a felony of the third degree, for a term of years not exceeding 10.

(b) The court, in conformity with the procedure established in subsection (3), may sentence the habitual violent felony offender as follows:

1. In the case of a felony of the first degree, for life, and such offender shall not be eligible for release for 15 years.

2. In the case of a felony of the second degree, for a term of years not exceeding 30, and such offenders shall not be eligible for release for 10 years.

3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years.

Sec. 775.084(4)(a), (b), Fla.Stat. (1989) (emphasis added).

Burdick argues that, by its terms, section 775.084(4)(a) does not specifically provide for enhancement for first-degree felonies punishable by life imprisonment 5 and thus he must be sentenced under the guidelines. Burdick also argues that a term of years not exceeding life imprisonment (the penalty for a first-degree felony punishable by life imprisonment) is the functional equivalent of a term of imprisonment for life (the penalty for a life felony). Thus, Burdick argues, in terms of penal policy, there is no difference between a first-degree felony punishable by life imprisonment and a life felony. Burdick concludes that because the district courts of appeal have held that life felonies are not subject to habitual offender enhancement, see, e.g., Johnson v. State, 568 So.2d 519, 520 (Fla. 1st DCA 1990); Power v. State, 568 So.2d 511, 512 (Fla. 5th DCA 1990), neither are first-degree felonies punishable by life imprisonment. We disagree.

The legislature has created five categories of felonies: capital felony; life felony; felony of the first degree; felony of the second degree; and felony of the third degree. Sec. 775.081(1), Fla.Stat. (1989). There is no separate classification for first-degree felonies punishable by life imprisonment. See Jones v. State, 546 So.2d 1134, 1135 (Fla. 1st DCA 1989) ("It is clear that there is no distinct felony classification of 'first degree punishable by life,' but only a

Page 269

first degree felony which may be punished in one of two ways."); but see Fla.R.Crim.P. 3.988(e) (listing "1st pbl" as a separate felony degree). Thus, a first-degree felony, regardless of the sentence imposed by the substantive law prohibiting the conduct, is still a first-degree felony under both the statutory classification and under the habitual offender statute.

Any other holding would be contrary to the policy behind the habitual offender statute. Clearly, the legislature intended first-degree felonies punishable by life imprisonment to be punished more severely than ordinary first-degree felonies. However, if first-degree felonies punishable by life imprisonment were not subject to enhancement under the habitual offender statute, then defendants convicted of first-degree felonies who were sentenced under the habitual offender statute would potentially receive harsher sentences than defendants convicted of first-degree felonies punishable by life who received guidelines sentences. This is especially true because sentencing under the habitual offender statute is entirely discretionary, whereas under the guidelines the trial judge is required to provide written reasons for departing from the prescribed network of recommended and permitted ranges. Moreover, defendants sentenced under the habitual offender statute are not eligible for basic gain time while defendants sentenced under the guidelines are eligible for both incentive and basic gain time. Sec. 775.084(4)(e), Fla.Stat. (1989).

We also note that excluding first-degree felonies punishable by life imprisonment from the habitual offender statute would operate as a disincentive to the state attorney who might otherwise be inclined to prosecute an accused for a first-degree felony punishable by life but who instead chooses to pursue the less severe substantive penalty because only that penalty is subject to habitual offender enhancement.

To paraphrase the court below, Burdick would have us judicially amend section 775.081(1) to add another classification of felonious crime, that of "first-degree felony punishable by life." Just as the district court declined this invitation, so must this Court. We cannot rewrite legislative acts.

In response to the second certified question, Burdick argues that a trial judge sentencing a defendant under section 775.084(4)(a)(1) is not required to impose the maximum penalty provided in the statute, but rather can sentence the defendant anywhere up to the maximum sanction. We find this issue controlled by State v. Brown, 530 So.2d 51 (Fla.1988). In Brown the Court held that "when a felony offender is properly habitualized and the guidelines sentence is less than life, the trial judge may not exceed the guidelines' recommendation absent a valid reason for doing so, notwithstanding the mandatory language of section 775.084(4)(a)1." 530 So.2d at 53. In so holding, the Court made a number of observations regarding the legislative history behind section 775.084(4)(a)(1):

We are further persuaded that the legislature never intended section 775.084(4)(a)1. to be mandatory. The word "shall" as used in section 775.084(4)(a)1. first appeared in the 1975 edition of Florida Statutes and has remained in all subsequent editions. After researching...

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184 practice notes
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • December 15, 1994
    ...imposed a lawful sentence, we affirm. We note initially that sentencing under the habitual felon statute is permissive. Burdick v. State, 594 So.2d 267 (Fla.1992). Thus, the trial judge, notwithstanding his determination that King was an habitual felon, was not required at the original sent......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...(Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 594 So.2d 267 (Fla.1992); with Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...(Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 594 So.2d 267 (Fla.1992); with Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of......
  • State v. Cotton, No. SC94996
    • United States
    • United States State Supreme Court of Florida
    • June 15, 2000
    ...felony offender statute was construed as never having been intended to be a mandatory minimum sentencing scheme. See Burdick v. State, 594 So.2d 267, 269 (Fla.1992)(confirming its prior construction of "shall" in habitual felony offender statute to be discretionary rather than mandatory, ba......
  • Request a trial to view additional results
184 cases
  • King v. State, No. 93-1261
    • United States
    • Court of Appeal of Florida (US)
    • December 15, 1994
    ...imposed a lawful sentence, we affirm. We note initially that sentencing under the habitual felon statute is permissive. Burdick v. State, 594 So.2d 267 (Fla.1992). Thus, the trial judge, notwithstanding his determination that King was an habitual felon, was not required at the original sent......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...(Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 594 So.2d 267 (Fla.1992); with Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...(Fla. 1st DCA 1991) (en banc decision released without antecedent publication of panel decision), approved in part, quashed in part by 594 So.2d 267 (Fla.1992); with Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of......
  • State v. Cotton, No. SC94996
    • United States
    • United States State Supreme Court of Florida
    • June 15, 2000
    ...felony offender statute was construed as never having been intended to be a mandatory minimum sentencing scheme. See Burdick v. State, 594 So.2d 267, 269 (Fla.1992)(confirming its prior construction of "shall" in habitual felony offender statute to be discretionary rather than mandatory, ba......
  • Request a trial to view additional results

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