Gayman v. State, 90-3635

Decision Date09 August 1991
Docket NumberNo. 90-3635,90-3635
Citation584 So.2d 632
PartiesDorcy GAYMAN, Appellant, v. STATE of Florida, Appellee. 584 So.2d 632, 16 Fla. L. Week. D2131
CourtFlorida District Court of Appeals

Louis O. Frost, Jr., Public Defender, James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

The issue as presented to us is whether the trial court punished appellant twice for the same offense by first reclassifying the offense as felony petit theft and then using that felony classification to punish appellant again as an habitual violent felony offender, contrary to the double jeopardy clauses of the United States and Florida Constitutions. We hold that there was no double jeopardy violation and therefore affirm.

Appellant was charged by information with armed robbery. The state thereafter filed a notice of intent to classify appellant as an habitual violent felony offender pursuant to section 775.084, Florida Statutes (1989). The case proceeded to trial and the jury found appellant guilty of petit theft.

The case was then passed on for sentencing, just prior to which the state filed a notice of intent to seek felony petit theft sentencing or, in the alternative, a first-degree misdemeanor penalty. The state next filed an amended notice of intent to classify appellant as an habitual violent felony offender, seeking an enhanced sentence commensurate with a conviction for felony petit theft. At the hearing, the court first adjudicated appellant guilty of the offense of felony petit theft based upon two prior convictions for petit theft. It then found appellant to be an habitual violent felony offender based on the instant conviction for felony petit theft and a prior conviction of aggravated battery. Consequently, appellant was sentenced to five years as a result of the felony petit theft, with a five-year minimum mandatory provision pursuant to the habitual violent felony offender statute.

On appeal, appellant argues that he was punished twice for a single, discrete offense in violation of the double jeopardy clause prohibiting multiple punishments for the same offense. See, generally, State v. Hegstrom, 401 So.2d 1343 (Fla.1981). He maintains that the first punishment was the reclassification of his conviction for petit theft to felony petit theft pursuant to section 812.014(2)(d), Florida Statutes. He notes that this reclassification increased his punishment from a maximum of 60 days for a second-degree misdemeanor to a maximum of five years as a third-degree felony. He then argues that the double jeopardy violation is caused by the "second enhancement" involving the elevation of the felony petit theft sentence to an habitual violent felony offender sentence thereby increasing the maximum sentence to a potential ten years instead of five, with a minimum mandatory of five years pursuant to section 775.084(4)(b)3. Appellant urges that although a defendant's recidivism may be used to increase the punishment applicable in the instant case, it may not be used twice to increase the penalty for an offense. He posits that the distinction between reclassification of an offense (as with felony petit theft) and enhancement of a penalty for an offense (as with an HVFO sentence) is not significant in this case where appellant's punishment was "undoubtedly increased twice."

Moreover, appellant argues that the legislature did not intend this result, relying on the analysis employed in case law involving the issue of double enhancement by the reclassification of an offense coupled with the imposition of a minimum, mandatory sentence for use of a firearm. See, e.g., Williams v. State, 517 So.2d 681 (Fla.1988) wherein the supreme court found it permissible to enhance an offense for the use of a firearm and then impose a minimum mandatory sentence for the use of the same firearm. In distinguishing Williams from the instant case, appellant argues that the minimum mandatory sentence imposed in Williams was not another sentence enhancement, as it did not increase the maximum penalty for the offense and could be imposed...

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5 cases
  • Maeweather v. State, 91-925
    • United States
    • Florida District Court of Appeals
    • June 2, 1992
    ...offender violates the constitutional prohibitions against double jeopardy. We reject this argument on the authority of Gayman v. State, 584 So.2d 632 (Fla. 1st DCA 1991). As in that case, we certify the following question of great public Whether the double jeopardy clauses of the United Sta......
  • Gayman v. State
    • United States
    • Florida Supreme Court
    • February 11, 1993
    ...R. Bischoff and Anne Y. Swing, Asst. Attys. Gen., Tallahassee, for respondent. OVERTON, Justice. We have for review Gayman v. State, 584 So.2d 632 (Fla. 1st DCA 1991), and Williams v. State, 596 So.2d 1148 (Fla. 2d DCA 1992), in which the district courts affirmed Petitioners' felony petit t......
  • Goldsmith v. State, 92-713
    • United States
    • Florida District Court of Appeals
    • October 2, 1992
    ...enhancement, thus a double jeopardy violation. Acknowledging that the issue was decided adversely to his position in Gayman v. State, 584 So.2d 632 (Fla. 1st DCA 1991), appellant requests certification of the question previously certified in Gayman, as a question of great public importance.......
  • Miller v. State, 91-02157
    • United States
    • Florida District Court of Appeals
    • April 3, 1992
    ...Atty. Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Affirmed. See Gayman v. State, 584 So.2d 632 (Fla. 1st DCA 1991). We agree with Gayman and thus certify to the Florida Supreme Court the following question of great public WHETHER THE DOUBLE JEOP......
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