Dominguez v. State, No. 84-506

CourtCourt of Appeal of Florida (US)
Writing for the CourtSHARP; COBB, C.J., and FRANK D. UPCHURCH
Citation10 Fla. L. Weekly 114,461 So.2d 277
Parties10 Fla. L. Weekly 114 Anthony Dale DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 84-506
Decision Date03 January 1985

Page 277

461 So.2d 277
10 Fla. L. Weekly 114
Anthony Dale DOMINGUEZ, Appellant,
v.
STATE of Florida, Appellee.
No. 84-506.
District Court of Appeal of Florida,
Fifth District.
Jan. 3, 1985.

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

Dominguez argues the trial court improperly calculated his score sheet in sentencing him under the new Sentencing Guidelines, Florida Rule of Criminal Procedure 3.701, because it reclassified the crimes for which he was being sentenced, based on his being found to be a habitual offender. § 775.084, Fla.Stat. (1983). We agree that error occurred and we vacate the sentence and remand for resentencing.

At the sentencing hearing the state offered a score sheet totalling 143 points, which would have placed Dominguez in the presumptive sentence range of five and one-half to seven years in prison. The state then withdrew the score sheet and substituted one with a total of 171 points, which carried a presumptive sentence of nine to twelve years. The judge imposed a twelve year sentence under the Guidelines.

The additional points were added to Dominguez' score sheet because the state contended as a habitual offender, 1 the crimes should be enhanced by raising the crimes by a degree. The enhancement had the effect of making Dominguez' armed burglary conviction, normally a first degree felony, 2 scored as a life felony. His conviction for possession of a firearm, normally a second degree felony, 3 was scored as a first degree felony. The two remaining offenses--carrying a concealed weapon, section 790.02, Florida Statutes (1983); and

Page 278

second degree grand theft, section 812.014, Florida Statutes (1983), both third degree felonies--were scored as second degree felonies. The trial judge made findings consistent with determining that Dominguez was a habitual offender, and imposed a Guidelines sentence based on a total of 171 points. 4

We think the trial court erred in increasing the point count for the crimes in calculating the Guidelines sentence, on the basis of the habitual offender statute. Section 775.084 provides:

"Habitual offender" means a defendant for whom the court may impose an extended term of imprisonment....

* * *

* * *

(4)(a) The court, in conformity with the procedure established in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant, shall sentence the habitual 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....

This statute has long been construed as a penalty enhancement statute. Washington v. Mayo, 91 So.2d 621 (Fla.1957). It merely prescribes longer sentences, but does not reclassify the offenses enhanced as being new substantive offenses. Eutsey v. State, 383 So.2d 219 (Fla.1980); see also Small v. State, 428 So.2d 337 (Fla. 2d DCA 1983); Adams v....

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7 practice notes
  • Fletcher v. State, No. 84-865
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1985
    ...case has discussed section 775.0845, Florida Statutes (1983) except to characterize it as an enhancement statute. Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985); Walcott v. State, 460 So.2d 915 (Fla. 5th DCA 1984); Cuthbert v. State, 459 So.2d 1098 (Fla. 1st DCA 1984); Cooper v. Stat......
  • Bogan v. State, No. 84-2679
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1986
    ...burglary, from a second degree felony to a first degree felony based upon the appellant's habitual offender status, Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985); that act resulted in the addition of thirty points to the guidelines score thus causing the appellant's presumptive sent......
  • Avery v. State, No. BI-446
    • United States
    • Florida District Court of Appeals
    • April 10, 1987
    ...offender statute "does not reclassify crimes as higher substantive crimes; it merely prescribes longer penalties." Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985). See also Jennings v. State, 498 So.2d 1373 (Fla. 1st DCA The trial court also failed to state specific reasons why the im......
  • Jennings v. State, No. BL-199
    • United States
    • Court of Appeal of Florida (US)
    • December 23, 1986
    ...appellant was wearing a "device that concealed his identity." Section 775.0845(4), Florida Statutes (1985). See also Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA As the State suggests, the Florida Supreme Court has adopted committee note (d)(10) to Rule 3.701, Fla.R.Crim.P. which explain......
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7 cases
  • Fletcher v. State, No. 84-865
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1985
    ...case has discussed section 775.0845, Florida Statutes (1983) except to characterize it as an enhancement statute. Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985); Walcott v. State, 460 So.2d 915 (Fla. 5th DCA 1984); Cuthbert v. State, 459 So.2d 1098 (Fla. 1st DCA 1984); Cooper v. Stat......
  • Bogan v. State, No. 84-2679
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1986
    ...burglary, from a second degree felony to a first degree felony based upon the appellant's habitual offender status, Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985); that act resulted in the addition of thirty points to the guidelines score thus causing the appellant's presumptive sent......
  • Avery v. State, No. BI-446
    • United States
    • Florida District Court of Appeals
    • April 10, 1987
    ...offender statute "does not reclassify crimes as higher substantive crimes; it merely prescribes longer penalties." Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985). See also Jennings v. State, 498 So.2d 1373 (Fla. 1st DCA The trial court also failed to state specific reasons why the im......
  • Jennings v. State, No. BL-199
    • United States
    • Court of Appeal of Florida (US)
    • December 23, 1986
    ...appellant was wearing a "device that concealed his identity." Section 775.0845(4), Florida Statutes (1985). See also Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA As the State suggests, the Florida Supreme Court has adopted committee note (d)(10) to Rule 3.701, Fla.R.Crim.P. which explain......
  • Request a trial to view additional results

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