Chukes v. State, 75--1074
| Decision Date | 14 May 1976 |
| Docket Number | No. 75--1074,75--1074 |
| Citation | 334 So.2d 289 |
| Parties | Charles CHUKES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack A. Nants, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
This case involves an application of the recidivist statute, § 775.084 F.S.1975.
The state filed an information (case CR 75--299) alleging that appellant was convicted of a felony on September 23, 1971, and that within five years thereafter he committed another felony for which he 'was tried by a jury and found guilty . . . on the 8th day of January, 1975 in case CR 74--2734.' The information also alleged that imposition of an extended sentence was necessary for the protection of the public from further criminal activity by appellant.
A hearing was held at which it was made to appear that appellant had been convicted of a felony on September 23, 1971, and had served time therefore in the penitentiary. There was also proof that appellant was tried for a second alleged felony and found guilty in case CR 74--2734, and sentenced to three years. The trial court found the charge in the information in case CR 75--299 was proven, and it sentenced appellant to nine years to run concurrently with the three year sentence in CR 74--2734.
The first point on appeal is that the trial court erred in denying appellant's motion to dismiss the information. We agree the information was defective in that it failed to allege a second felony 'conviction', i.e., it alleged the jury had returned a verdict of guilty but it did not allege that the court had entered a judgment of guilty. However, the error is harmless since it is no longer necessary to implement § 775.084 F.S. by way of an information. McShay v. State, Fla.App.4th 1975, 321 So.2d 464.
Appellant next complains that the state adduced no proof whatsoever to show that imposition of sentence under § 775.084 was necessary for the protection of the public from further criminal activity by appellant.
It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.084, F.S.1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court's findings, a defendant's right to appellate review would be effectively stifled. In Wright v. State, Fla.App.2d 1974 291 So.2d 118, the court noted with approval Section 5.5 of the American Bar Association's proposed Minimum Standards for Criminal Justice relating to Sentencing Alternatives and Procedures, which section set out special requirements of due process in sentencing one under habitual offender or recidivist statutes. We think the invocation of such statutes requires the evidence relied upon by the trial court for the enhanced sentence be produced in open...
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Adams v. State
...our holding is consonant with decisions of the other Florida district courts of appeal in construing Section 775.084: Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976), stating the statute "requires the evidence relied upon by the trial court for the enhanced sentence be produced in open c......
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Weston v. State
...775.084(3)(d); Eutsey v. State, 383 So.2d 219, 226 (Fla.1980); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). The trial judge made no such findings. He merely stated, upon imposing sentence, his conclusion that an extended term was nece......
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Zambuto v. State, 81-39
...by the prosecutor; nonetheless, it cannot be said that its utilization is direct, immediate and largely automatic. 2 Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). The Florida Statute requires specific factual findings 3 and depends ultimately upon the trial court's determination that ......
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Moore v. State, 79-948
...4th DCA 1979); Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978); Grimmett v. State, 357 So.2d 461 (Fla. 2d DCA 1978); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). Without going into the basis of our government and a treatise on the theories and applications of the separation of power......