Burgess v. State, 96-2896

• Decision Date: 16 April 1997
• Docket Number: No. 96-2896,96-2896
• Citation: 691 So.2d 607
• Parties: 22 Fla. L. Weekly D960 Anthony BURGESS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 607

691 So.2d 607

22 Fla. L. Weekly D960

Anthony BURGESS, Appellant, v. STATE of Florida, Appellee.

No. 96-2896.

District Court of Appeal of Florida Fourth District.

April 16, 1997.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

SHAHOOD, Judge.

In case number 95-83-CF, following no contest pleas to two counts of possession of cocaine and two counts of sale of cocaine, appellant, Anthony Burgess ("Burgess"), was adjudged guilty and sentenced to six months in prison followed by two years' probation. Thereafter, an affidavit of violation of probation was filed in which Burgess was alleged to have committed a battery on a female victim by punching her in the eye and burning her with a hot iron, failed to obtain a substance abuse evaluation, and failed to pay court costs and costs of supervision.

Two days later, in case number 96-98-CF, Burgess was charged again with possession and sale of cocaine. He pled no contest to the charges, and signed a petition to enter a plea on which the judge wrote, "if defendant commits a new crime prior to sentencing or fails to appear at sentencing he may be sentenced to the statutory maximum." The trial judge also informed Burgess at the hearing that he would be subject to the maximum penalty of fifteen years if he failed to appear. Burgess was released on his own recognizance pending sentencing in order to aid detectives in the investigation of another case. The court warned Burgess that "if you go out on your own recognizance, then if you commit a new crime prior to sentencing or fail to appear at sentencing, you are subjecting yourself to up to fifteen years in the Department of Corrections."

Burgess failed to appear for sentencing and a bench warrant was issued in both cases. On the sentencing score sheets in both cases, the trial court noted, "agreement by def[endant] at the time of the plea that if he FTA [fails to appear] at sentencing the guidelines would not apply. He did FTA [fail to appear] and the guidelines do not apply by his agreement at the plea."

At the hearing, Burgess claimed that he did not understand that he would get the maximum if he failed to appear. The trial court stated the following:

Let me note for the record that it was crystal clear at the time that I took the plea that he fully understood the terms of his OR release and the terms of his plea and further that his release and the agreement to be back at the time of sentencing and did not commit any new criminal offenses formed an integral part of both the plea, the recommendation and his release .... while there is no evidence that he committed any new criminal offense, it was crystal clear that he did not appear on April 30th, 1996 for sentencing. For the record, the court file reflects the Notice to Defendant containing the time and date of sentencing that he signed for on February 9, 1996, as a result I do not feel constrained by the sentencing guidelines, and the Defense is certainly free to test that on appeal.

Thereafter, the trial court revoked Burgess' probation and sentenced him to fifteen years in prison in case number 95-83-CF to be served concurrently with a fifteen-year term in case number 96-98-CF.

On appeal, Burgess argues that the trial court erred in entering a departure sentence. It is clear...