Burdick v. State

Decision Date06 February 1992
Docket NumberNo. 78466,78466
Citation594 So.2d 267
PartiesBilly BURDICK, Petitioner, v. STATE of Florida, Respondent. 594 So.2d 267, 17 Fla. L. Week. S88
CourtFlorida Supreme Court

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 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 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 relevant session laws from the Laws of Florida (1975), we conclude that the legislature itself never inserted the word in the statute and that the word "shall" either was an editorial error or a misapprehension of actual legislative intent by the editors. Both chapters 75-116 and 75-298, Laws of Florida, the only two laws amending section 775.084 during the 1975 session, clearly use the word "may." This expresses an unequivocal legislative intent that the life sentence should be permissive, not mandatory. Moreover, no prior or subsequent legislation contained in the Laws of Florida has purported to change the word "may" to "shall."

Id. (emphasis added) (footnote omitted).

The State argues that the Brown decision is not controlling because the issue before the Court in Brown was the relationship between the new sentencing guidelines and the habitual offender statute. Thus, according to the State, the precise holding in Brown was that the trial judge could not exceed the guidelines recommendation in sentencing a defendant as a habitual offender without giving valid departure reasons. Because the Court had previously held that habitual offender status was not a valid reason for departure, the State concludes that the Court was forced to construe the life sentence provision in the habitual offender statute as permissive in order to accommodate the conflicting recommendation of the sentencing guidelines.

Now, the State argues, the factual predicate for Brown has changed because in 1988 the legislature amended the habitual offender statute to make habitual offender sentencing independent of the sentencing guidelines. Ch. 88-131, Sec. 6, Laws of Fla. Therefore, under the ambit of section 775.084(4)(e), Florida Statutes (1989), 6 the life sentences in subsections 4(a)(1) and 4(b)(1) of the habitual offender statute can now be read as mandatory, as the legislature originally intended, because those sentences can be imposed regardless of the guidelines' recommendations. In short, the State argues that the legislature amended section 775.084 to change the Court's interpretation of the habitual offender statute in Brown and thus it is irrelevant that the...

To continue reading

Request your trial
186 cases
  • State v. Cotton
    • United States
    • Florida Supreme Court
    • 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......
  • Lamont v. State
    • United States
    • Florida District Court of Appeals
    • February 18, 1992
    ...to life imprisonment under the habitual offender statute in accordance with the Florida Supreme Court's recent holding in Burdick v. State, 594 So.2d 267 (Fla.1992), and this Court's holdings in Westbrook v. State, 574 So.2d 1187 (Fla. 3d DCA 1991) and Henry v. State, 576 So.2d 409 (Fla. 3d......
  • Peters v. State
    • United States
    • Florida District Court of Appeals
    • November 20, 2013
    ...system, where criminals are placed into classes of potential punishment based on the seriousness of each offense. See Burdick v. State, 594 So.2d 267, 268 (Fla.1992). The legislature has created separate classes subject to increased levels of punishment: misdemeanor defendants are punished ......
  • King v. State, 93-1261
    • United States
    • Florida District Court of Appeals
    • 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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT