Grimes v. State, 91-3329

Decision Date31 December 1992
Docket NumberNo. 91-3329,91-3329
Citation616 So.2d 996
Parties18 Fla. L. Week. D240 Ural GRIMES, Jr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Spiro T. Kypreos, Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen., Edward C. Hill, Jr., Asst. Atty. Gen., for appellee.

KAHN, Judge.

Ural Grimes, Jr. was charged by information with eight counts of robbery with a deadly weapon, one count of dealing in stolen property, and one count of grand theft auto. After Mr. Grimes entered a plea of nolo contendere to the charges, the lower court sentenced him to concurrent life sentences (non-habitual offender) for the counts of robbery with a deadly weapon, a concurrent thirty year sentence as an habitual offender for dealing in stolen property, and a concurrent ten year sentence as an habitual offender for grand theft auto. On appeal, Grimes maintains that the lower court erred in failing to make findings of fact pursuant to section 775.084(1)(a), Florida Statutes (1989), before sentencing him as an habitual offender and the written sentence does not conform to the oral pronouncement of sentence. We reverse.

At the sentencing hearing, the lower court made no findings as to whether the convictions necessary for habitual offender sentencing were pardoned or set aside as required by section 775.084(1)(a), Florida Statutes (1989), before sentencing Grimes as an habitual offender for dealing in stolen property and grand theft auto. Despite the fact that Grimes did not raise these matters affirmatively, the failure to make these statutory findings is per se reversible error. Jones v. State, 606 So.2d 709 (Fla. 1st DCA Oct. 14, 1992); Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991), review pending, No. 79,535. Accordingly, we reverse the sentences for dealing in stolen property and grand theft auto and remand for resentencing in compliance with section 775.084, Florida Statutes (1989). We certify to the supreme court the same question certified in Jones.

We note that robbery with a deadly weapon is a first degree felony punishable by life. Sec. 812.13(2)(a), Fla.Stat. (1989). At the sentencing hearing which took place on October 8, 1991, the trial court indicated that he was not sure if the question had yet been resolved concerning whether habitual offender punishment was available in the case of a first degree felony punishable by life. The trial court then stated: "And in any event, I don't think I have to get into that on those counts [the first degree felonies punishable by life]. As to the other counts, the grand theft and the dealing in stolen property, I am going to find that Mr. Grimes is a habitual felony offender." As to these other counts, the trial court classified Grimes as an habitual felony offender and sentenced him accordingly. These sentences, of course, must be revisited as indicated above.

As to the first degree felonies punishable by life, the trial court, having made the statement set out previously, sentenced Grimes to eight life terms to be served concurrently. The written judgment prepared by the clerk, however, indicates: "The defendant is adjudged a habitual offender and has been sentenced to an extended term and sentence in accordance with the provisions of F.S. 775.084(4)(a). The requisite findings by the court are set forth in a separate order or stated on the record in open court." The state concedes that the written sentence did not conform to the oral pronouncement, and accordingly Grimes must be resentenced on these eight counts.

The state has suggested, however, that pursuant to Burdick v. State, 594 So.2d 267 (Fla.1992), the trial court should now be allowed to treat Grimes as an habitual offender as to these eight counts. The state has suggested in its brief, without citation of authority, that the habitual offender sentence on these counts "would not be an increase in sentence as the sentence would be less than the guidelines life sentence imposed." We reject this argument, and find that, as to the first degree felonies punishable by life, the only thing to be taken care of on remand is to correct the written judgments to conform with the oral pronouncement, which was, as the state has acknowledged, a guidelines life sentence.

We reach this result because the trial court could have treated Grimes as an habitual offender at the time of the original sentencing. Because of the undecided state of the law at that time, the judge decided not to do so, and instead gave eight concurrent guidelines life sentences. In Davis v. State, 587 So.2d 580 (Fla. 1st DCA 1991), this court reversed an habitual offender sentence which the trial court had imposed on its own motion after initially imposing what the judge believed was a permitted guidelines sentence. On appeal, this court held that the trial court's initial decision not to find Davis an habitual offender after considering the evidence and hearing argument on that issue constituted an acquittal of the habitual offender "sentence." 587 So.2d at 581. The Davis court relied upon Brown v. State, 521 So.2d 110 (Fla.), cert. denied, 488 U.S. 912, 109 S.Ct. 270, 102 L.Ed.2d 258 (1988), in which the Supreme Court held that when a trial court has commenced a capital sentencing proceeding and determines that the death penalty is inappropriate for the defendant, such operates as an acquittal of the death sentence for double jeopardy purposes, even if the decision was erroneous. The Davis court also relied upon this court's earlier decision in Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990), rev. denied, 576 So.2d 291 (Fla.1991), disapproved on other grounds, 594 So.2d 291 (Fla.1992). In Donald the court concluded that a trial judge who expresses the view at an original sentencing hearing that a life sentence under the habitual offender statute would be inappropriate could not thereafter impose an habitual offender sentence on the court's own motion, even after realizing that the original sentence was illegal.

Following the rationale of Davis, Brown and Donald, we find that the trial court elected not to categorize Grimes as an habitual offender, and that such election constituted a determination that may not now be revisited without treading upon appellant's constitutional right to be free of facing double jeopardy. Further, under these cases, it is immaterial whether the trial court erroneously concluded that he could not sentence Grimes as an habitual offender.

We note that in King v. State, 597 So.2d 309 (Fla. 2d DCA 1992) (en banc), our sister court held that a sentencing judge has no discretion when it comes to a determination of habitual offender status. Were we to adopt this view, we would be faced with the concern that failure to classify Grimes as an habitual offender would be illegal. According to the Second District, once the proper evidence is presented in an habitual offender proceeding, the determination of habitual offender status is "a ministerial determination." 597 So.2d at 313. In reaching this conclusion, the Second District disagreed with our decision in ...

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11 cases
  • King v. State, 93-1261
    • United States
    • Florida District Court of Appeals
    • December 15, 1994
    ...is "necessary for the protection of the public." Sec. 775.084(4)(c), Fla.Stat. (1989); e.g., Burdick, 594 So.2d at 267; Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1993); King, 597 So.2d at 314; Donald v. State, 562 So.2d 792, 795 (Fla. 1st DCA 1990) ("court has the option, under section 7......
  • Hardy v. Jones
    • United States
    • U.S. District Court — Northern District of Florida
    • October 15, 2015
    ...decided not to find habitual offender status after considering the State's request and presentation of evidence. Grimes v. State, 616 So. 2d 996 (Fla. 1st DCA 1992); Martinez v. State, 625 So. 2d 1306 (Fla. 3d DCA 1993). Because this constitutes an "acquittal" of the habitual offender sente......
  • White v. State, 91-3959
    • United States
    • Florida District Court of Appeals
    • May 17, 1993
    ...to section 775.084(1)(b) and (4)(b), Florida Statutes (1989). See Johnson v. State, 612 So.2d 689 (Fla. 1st DCA1993); Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992). Cf. King v. State, 597 So.2d 309, 314-15 (Fla. 2d DCA) (en banc) (finding trial court lacks discretion in determination o......
  • London v. State, 92-2048
    • United States
    • Florida District Court of Appeals
    • June 24, 1993
    ...equal protection), rev. denied, 564 So.2d 1086 (1990). The issue of separation of powers has also been resolved in Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992), and Johnson v. State, 612 So.2d 689 (Fla. 1st DCA 1993), wherein this court held that the trial court was not required to cl......
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