Frazier v. State
| Decision Date | 05 April 1990 |
| Docket Number | No. 73082,73082 |
| Citation | 559 So.2d 1121 |
| Parties | 15 Fla. L. Weekly S187 Johnnie Lee FRAZIER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Barbara Linthicum, Public Defender, and Maria Ines Suber, Asst. Public Defender, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for respondent.
In Frazier v. State, 530 So.2d 986 (Fla. 1st DCA 1988), the district court certified the following question as being of great public importance:
Whether jury instructions based on the statutory presumptions contained in § 316.1934(2)(c) constitute unconstitutional mandatory rebuttable presumptions.
Id. at 989. 1 The district court held subsection 316.1934(2)(c), Florida Statutes (Supp.1986), regarding blood alcohol level, unconstitutional, but, applying the harmless error test, affirmed Frazier's DUI manslaughter conviction. We recently held subsection 316.1934(2)(c) constitutional. State v. Rolle, 560 So.2d 1154 (Fla. 1990). Therefore, we answerthe certified question in the negative and approve the result reached by the district court, but quash that portion of its opinion dealing with this issue.
Frazier raises two other issues, 2 only one of which we discuss. In 1980 a trial court sentenced Frazier to ten years' imprisonment on a sexual battery charge. The court ordered that Frazier serve the first five years and suspended the second five years, placing Frazier on probation for that five-year period. Thus, Frazier's 1980 sentence constituted "a 'true split sentence' consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion." Poore v. State, 531 So.2d 161, 164 (Fla.1988).
Frazier's later DUI manslaughter conviction produced a recommended guidelines sentence of seventeen to twenty-two years. The maximum statutory sentence for that offense is fifteen years, however, and the trial court sentenced Frazier to fifteen years' imprisonment on that conviction. The court also revisited Frazier's 1980 sentence because the DUI manslaughter conviction constituted a probation violation. The court resentenced Frazier to ten years' imprisonment on the 1980 conviction with credit for time served. Frazier is entitled to a full five-year credit on his original sentence. State v. Green, 547 So.2d 925 (Fla.1989).
Contrary to Frazier's current claim, he did not receive a twenty-five-year sentence. His resentencing on the 1980 conviction is consistent with Poore because the court did not "order new incarceration that exceed[ed] the remaining balance of the withheld or suspended portion of the original sentence." 531 So.2d at 164. We therefore approve the district court's affirmance of both the fifteen-year sentence and the ten-year, with credit for five years served, sentence.
It is so ordered.
While I agree with the outcome of this case, I cannot totally agree with the reasoning by which the result was reached.
In Poore v. State, 531 So.2d 161 (Fla.1988), which also involved a "true split sentence," we pointed out that "the cumulative incarceration imposed after violation of probation always will be subject to any limitations imposed by the sentencing guidelines recommendation." Id. at 165. As expressed in his dissenting opinion, only Justice McDonald believed that this...
To continue reading
Request your trial
-
Marcolini v. State
...that holding. See State v. Rolle, 560 So.2d 1154 (Fla.), cert. denied, 498 U.S. 867, 111 S.Ct. 181, 112 L.Ed.2d 144 (1990); Frazier v. State, 559 So.2d 1121 (Fla.), cert. denied, 498 U.S. 834, 111 S.Ct. 102, 112 L.Ed.2d 73 (1990).7 I fail to see how jury instructions should play a role in o......
-
Allen v. Sec'y of the Fla. Dep't of Corr.
...at *5 (Fla. 1st DCA Feb. 28, 2018) (unpublished) (motion for rehearing denied; mandate not yet issued); see also Frazier v. State, 559 So. 2d 1121, 1122 n.2 (Fla. 1990) (finding meritless a petitioner's "claim that the trial court erred in not instructing the jury that the victim's not wear......
-
State v. Hubka
...to use seat belt could be considered in determining whether defendant's conduct was a proximate cause of victim's death); Frazier v. State, 559 So.2d 1121 (Fla.1990), cert. den., 498 U.S. 834, 111 S.Ct. 102, 112 L.Ed.2d 73 (victim's failure to wear seat belt was not a defense to driving und......
-
Bankston v. State, 92-03352
...v. State, 498 So.2d 1018 (Fla. 2d DCA 1986)); Lee v. State, 491 So.2d 1289 (Fla. 2d DCA 1986). See also Frazier v. State, 559 So.2d 1121, 1122 (Fla.1990) (Grimes, J., concurring), cert. denied, 498 U.S. 834, 111 S.Ct. 102, 112 L.Ed.2d 73 (1990); Mansfield v. State, 633 So.2d 1151 (Fla. 5th ......
-
The offense
...at least one other intermediate appellate court decision, West v. State , 553 So.2d 254 (Fla. App. 1989). See also Frazier v. State , 559 So.2d 1121 (Fla. 1990) (Florida Supreme Court answered a question certified from the District Court of Appeal and approved a similar jury instruction to ......