Eutsey v. State

Decision Date24 April 1980
Docket NumberNo. 55985,55985
PartiesFredford James EUTSEY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Alan H. Schreiber, Public Defender; and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.

ALDERMAN, Justice.

The imposition of an increased sentence pursuant to section 775.084, Florida Statutes (1977), 1 Florida's habitual offender act is before us on direct appeal because the trial court, in imposing an enhanced sentence, upheld the constitutionality of this act against a challenge that it violated appellant's right to due process of the law. We hold that the act is constitutional, and we affirm the enhanced sentence.

The appellant, Fredford Eutsey, was tried and convicted of burglary of a dwelling. The State thereafter filed a written notice advising Eutsey that it would seek to have him declared an habitual offender. The notice alleged that the offense for which Eutsey was convicted and would be sentenced was committed within five years of his prior felony conviction for attempted armed robbery on or about January 23, 1976, and that imposition of a sentence under section 775.084 is necessary for the protection of the public from further criminal activity by Eutsey. Eutsey moved to strike the notice on the basis that it was vague and indefinite and also moved to dismiss the notice on the basis that the habitual offender act does not afford him the full panoply of due process rights accorded an accused in a criminal trial determining guilt. During the hearing on these motions, Eutsey generally objected to the admissibility of presentence investigation reports in habitual offender sentencing proceedings; however, he made no specific challenge to any portion of his presentence report, and he did not expressly dispute the truth of any matters contained within this report. In denying the motion to strike, the trial court held that the notice was sufficient and concluded that Eutsey was in no way prejudiced. In denying the motion to dismiss, the court found that many of the rights which Eutsey claimed were allowed under the habitual offender act. It further noted that Eutsey's presentence report had been available to defense counsel at all times.

At the conclusion of the hearing, the trial court found, beyond and to the exclusion of every reasonable doubt, that Eutsey is the same person who was convicted of attempted robbery on January 23, 1976, and received a three-year sentence; that he is the same person who was convicted on July 20, 1978, of burglary in the present case; that each is a felony; and that the latter conviction was within five years of the earlier conviction, and commission of the latter crime was within nineteen or twenty days after Eutsey's release from prison on the first felony for which he was sentenced. The court further found that Eutsey had not received a pardon and that his convictions had not been set aside in post-conviction relief proceedings. The court went on to make extensive specific findings relative to its conclusion that an enhanced penalty was necessary for the protection of the public. The court then sentenced Eutsey to twenty-five years in the state prison.

The purpose of the habitual offender act is to allow enhanced penalties for those defendants who meet objective guidelines indicating recidivism. The enhanced punishment, however, is only an incident to the last offense. The act does not create a new substantive offense. It merely prescribes a longer sentence for the subsequent offenses which triggers the operation of the act. The determination of whether one may be sentenced as an habitual offender is independent of the determination of guilt of the underlying substantive offense, and new findings of fact separate and distinct from the crime charged are required. Reynolds v. Cochran, 138 So.2d 500 (Fla.1962).

Relying upon Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), Eutsey challenges the constitutionality of section 775.084 on the basis that it deprived him of due process of the law because it fails to provide him the same rights accorded an accused in a criminal trial. The State responds that Specht is distinguishable and that its holding should not be extended to encompass habitual offender proceedings but rather we should rely essentially on Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), for disposition of this matter.

Specht v. Patterson involved a challenge to Colorado's sex offender statute on the basis that the act allowed a critical finding to be made without a hearing and on the basis of hearsay evidence to which defendant had no access. The Supreme Court held the Colorado act unconstitutional and said: "Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed." 386 U.S. at 610, 87 S.Ct. at 1212. The Court distinguished Specht from its earlier decision in Williams v. New York where it held that the due process clause does not require that a defendant be permitted to confront and to cross-examine witnesses as to his prior criminal record considered by the court in sentencing him in a regular sentencing. The Supreme Court adhered to Williams but declined to extend it to Specht because it determined that the Colorado sex offender statute presented a different situation in that it made one conviction the basis for commencing another proceeding under another act rather than making the commission of a specific crime the basis for sentencing.

Eutsey was accorded all due process rights specified in Specht, but he contends he is entitled to more. He argues that in view of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which made the right to trial by jury on the issue of guilt in criminal cases applicable to the states, and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which made the standard of proof beyond a reasonable doubt on the question of guilt applicable to the states, he is also entitled to these rights in habitual offender proceedings.

The federal act that allows increased sentences for special offenders, 18 U.S.C. § 3575, grants to defendants procedural safeguards substantially similar to those provided by Florida's habitual offender statute. The rationale of the United States Court of Appeals, Fifth Circuit, in United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977), upholding the constitutionality of the federal act, is persuasive. In Bowdach, the Fifth Circuit concluded that Specht should be limited to those due process guarantees expressly enumerated in that opinion of the Supreme Court and that Specht does not require proof beyond a reasonable doubt and trial by jury in a sentencing proceeding of a defendant under the recidivist portion of 18 U.S.C. § 3575. See also United States v. Neary, 552 F.2d 1184 (7th Cir. 1977).

Additional support for our decision is found in Hollis v. Smith, 571 F.2d 685 (2d Cir. 1978). In that case, the Second Circuit held that a New York sex offender statute, which did not provide for trial by jury and did not require proof beyond a reasonable doubt in the separate sentencing proceeding, did not deprive the defendant of due process of the law. The court stated:

We are wholly unconvinced that even if the Specht Court had had the benefit of the later Duncan decision, it would have required Colorado to afford a jury trial under its Sex Offenders Act. One reason is the difference in history and tradition recounted above; the importance of this was underscored in McKeiver v. Pennsylvania, 403 U.S. 528, 548, 91 S.Ct. 1976, (1987), 29 L.Ed.2d 647 (1971), where, particularly due to such a difference in history, the Supreme Court held there was no right to a jury trial at juvenile delinquency proceedings despite its holding in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that the due process clause applies to such proceedings. A second consists of the considerations quoted from the Task Force Report. A third is the difference in the jury's office. There still is validity in the distinction drawn by Mr. Justice Black in Williams, 337 U.S. at 246-47, 69 S.Ct. at 1083, between the trial's role of determining "whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused," using "rules of evidence . . . which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged," and the task of determining whether a defendant is a danger to society or will benefit from institutional treatment. . . . There is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding. . . .

571 F.2d at 693. The Second Circuit, in Hollis, also rejected defendant's contention that this type of separate sentencing proceeding required proof beyond a reasonable doubt, concluding that In re Winship does not cover this type of proceeding.

We likewise conclude that neither Duncan nor In re Winship expand the due process requirements enumerated in Specht and that habitual offender proceedings do not require the full panoply of rights afforded a criminal during his trial as to guilt. We hold that the procedural safeguards afforded a defendant by section 775.084 are adequate and are in accordance with the due process requisites announced by the Supreme Court in Specht v. Patterson.

Additionally, incorporated in Eutsey's constitutional...

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