Fleming v. State, 85-118
| Decision Date | 03 January 1986 |
| Docket Number | No. 85-118,85-118 |
| Citation | 11 Fla. L. Weekly 112,480 So.2d 715 |
| Parties | 11 Fla. L. Weekly 112 Dwight FLEMING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow and L.S. Alperstein, Asst. Public Defenders, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Dwight Fleming, appeals from the trial court's final orders adjudicating him guilty of burglary and sentencing him as a habitual offender beyond the sentencing guidelines. We affirm the conviction but vacate the sentence and remand for resentencing.
Fleming was charged in an information on May 1, 1984, with burglary in violation of section 810.02, Florida Statutes. The crime allegedly occurred on March 25, 1984. After a trial on November 26 and 27, 1984, a jury found him guilty. After the verdict was entered on January 9, 1985, the state notified Fleming of its intention to seek an enhanced habitual offender sentence pursuant to section 775.084, Florida Statutes. On January 10, 1985, the trial court conducted a sentencing hearing to determine whether Fleming fell within the purview of the habitual offender statute.
At the outset of the sentencing hearing, Fleming's counsel informed the trial court that Fleming desired to be sentenced within the guidelines' recommended range of twelve to thirty months of incarceration or community control. During the course of the hearing, the state submitted a presentence investigation report disclosing Fleming's prior conviction for burglary in 1978, a two year prison sentence and his parole in 1980. In addition, the presentence investigation report revealed he had been convicted for burglary in 1981, was sentenced to three years imprisonment and released from prison on March 29, 1982. Based upon Fleming's prior record, the state contended he was a danger to the community and his sentence should be enhanced pursuant to the habitual offender statute. At the conclusion of the hearing, the trial court agreed that Fleming was a habitual offender and that an enhanced sentence was warranted; it sentenced Fleming to nine years of imprisonment. The only statement expressed by the trial court at the hearing justifying the habitual offender sentence appears in the record as follows:
It's my opinion, sir, you have not seen fit to profit by the jail sentences that you have been given previously, sir.
I believe as the State says, that you launched yourself into a career as a criminal, rather than learning from your past experiences and incarceration.
The trial court's determination to sentence Fleming as a habitual offender constituted a departure from the guideline's presumptive sentence. Neither a scoresheet nor a separate written document setting forth reasons for exceeding the guidelines, however, is found in the record.
Fleming contends that the trial court failed to comply with section 775.084(3)(d), Florida Statutes. That statute requires a sentencing court following the conduct of an evidentiary hearing to find by a preponderance of the evidence that it is necessary for the protection of the public to sentence a defendant to an extended term of imprisonment. Fleming's second contention is that the trial court ignored its statutory obligation to prepare a separate written document providing reasons for departing from the sentencing guidelines. We find merit in both contentions.
Although it is not an issue urged by Fleming, we find it appropriate to consider and determine whether the supreme court's recent opinion in Hendrix v. State, 475 So.2d 1218 (Fla.1985), affects reliance upon the habitual offender statute in achieving departure from a presumptive sentence. Hendrix bars a departure from the guidelines grounded upon a defendant's prior conviction for the reason that a prior conviction is a part of the computation leading to the presumptive sentence. "To allow the trial judge to depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence would in effect be counting the convictions twice which is contrary to the spirit and intent of the guidelines." Id. at 1220. Implementation of the habitual offender statute is dependent upon a prior conviction. Thus, save in the rare circumstance where a guidelines sentence would exceed a habitual offender sentence, a literal adherence to Hendrix would functionally repeal section 775.084, a result we perceive not to have been intended in the formulation of guidelines sentencing. Ferguson v. State, 481 So.2d 924 (Fla.2d DCA 1985.).
It is evident from section 775.084 that the presence of a prior conviction in a defendant's criminal history simply ignites the procedural events which must precede the imposition of a habitual offender sentence. In resolving whether to impose a habitual offender sentence, however, the trial court's assessment of relevant circumstances is neither dependent upon nor related to "the determination of guilt of the underlying substantive offense, and new findings of fact separate and distinct from the crime charged are required." Eutsey v. State, 383 So.2d 219, 223 (Fla....
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Watson v. State, 85-1496
...offense. Contra Hale v. State, 490 So.2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1985); Fleming v. State, 480 So.2d 715 (Fla. 2d DCA 1986). Appellant also contends that the trial court erred in failing to put the factual bases of the habitual offender determina......
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Brown v. State, 85-1729
...supra. Contra Hale v. State, 490 So.2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1985); Fleming v. State, 480 So.2d 715 (Fla. 2d DCA 1986). The sentence is vacated and the cause is remanded for DAUKSCH and COBB, JJ., concur. ON MOTION FOR REHEARING PER CURIAM. Th......
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Bogan v. State, 84-2679
...the habitual offender conclusion must first be reached free from error and in accordance with section 775.084(3). Fleming v. State, 480 So.2d 715 (Fla.2d DCA 1986). The court also relied upon the facts of the instant case to support its departure. These facts, however, reveal nothing egregi......
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Vicknair v. State
...v. State, 476 So.2d 158 (Fla.1985).5 We recognize that Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1986), and Fleming v. State, 480 So.2d 715 (Fla. 2d DCA 1986), hold otherwise. We also note that the first district in Shull v. State, 481 So.2d 129 (Fla. 1st DCA 1986), found no error in co......