Howard v. State

• Citation: 820 So.2d 337
• Decision Date: 20 March 2002
• Docket Number: No. 4D00-692, No. 4D00-3115.
• Parties: Timothy HOWARD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

820 So.2d 337

Timothy HOWARD, Appellant, v. STATE of Florida, Appellee.

Nos. 4D00-692, 4D00-3115.

District Court of Appeal of Florida, Fourth District.

March 20, 2002.

Carey Haughwout, Public Defender, and Maxine Williams, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant, Timothy Howard, was tried by jury on a charge of trafficking in more than 200 grams of cocaine. He was found guilty of the lesser-included offense of possession of cocaine. We affirm appellant's conviction and sentence of five years imprisonment.

Following a pre-sentence investigation (PSI), the Department of Corrections recommended that appellant be placed on three years probation and perform one hundred hours of community service. The trial court agreed that probation would normally be appropriate for a first-time offender convicted of possession of cocaine, yet imposed the maximum permissible sentence under the Criminal Punishment Code (Code), five years in prison. Before imposing sentence, the court said:

Normally, for a possession of cocaine, which this court sees a great deal, on a daily basis, probation is usually the standard sentence where there's one or two rocks of cocaine, personal use, perhaps some narcotics addiction or the like, that's very appropriate.

And the court is further aware that in cases where there's a first offense, the court should be lenient. And where there's not a lengthy prior criminal background, again, it sort of cries out for leniency. And to sentence someone to the maximum is, is, is generally not the standard and is, and would otherwise be considered an abuse of discretion.

The court has considered the presentence investigation and the like but the, the court frankly rejects the, the recommendation of the probationary plea.

And the court does so for the following reasons. The facts in this case were very very clear. The facts in this case demonstrated that the defendant was in possession of a substantial amount of narcotics, a substantial amount of money. There was a, well over $3,000, there was $1,200 I believe, in the defendant's vehicle in the glove box, and further a little over $2,000 in a shoe box wherein the cocaine was found. And this was not merely just a street level issue.

* * *

And based upon all of the evidence, the court finds that the, that the defendant is entitled to be sentenced to something beyond the probationary sentence as suggested by the, by the defendant and by the probation officer.

During the pendency of this appeal, appellant filed a 3.800(b) motion to correct his sentence. In his motion, appellant asserted that the trial court abused its sentencing discretion by relying on conduct for which he was acquitted by the jury. He pointed out that the jury, in finding him guilty of simple possession of cocaine, rejected the trafficking amount in its verdict. Thus, he argued, the quantity of cocaine he allegedly possessed should not have been considered by the court at sentencing. The trial court denied the motion after a hearing, and appellant filed this appeal.

The state argues that appellant's five-year sentence is not subject to appellate review because it falls within the statutory limits of the Code. The Code provides that "the trial court may impose a sentence up to and including the statutory maximum for any offense ...." § 921.002(1)(g), Fla. Stat. (2000). "The permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum...." Section 921.0024(2), Fla. Stat. (2000). The state contends that because the trial court imposed a legal sentence under the statutes, this issue is not cognizable on direct appeal. As authority, the state cites sections 924.06(1)(d) and (e), Florida Statutes (2000) (a defendant may appeal an illegal sentence or a sentence imposed under section 921.0024 which exceeds the statutory minimum), and Rule 9.140(b)(1)(D), Florida Rule of Appellate Procedure (a defendant may appeal an unlawful or illegal sentence).

Indeed, the general rule in Florida is that when a sentence is within statutory limits, it is not subject to review by an appellate court. Booker v. State, 514 So.2d 1079, 1081 (Fla.1987). As the Florida Supreme Court explained in Brown v. State, 152 Fla. 853, 13 So.2d 458, 461 (1943), superseded by statute on other grounds, State v. Altman, 106 So.2d 401 (Fla.1958):

The legislature has by statute fixed the maximum punishment which may be imposed for violation of the provisions of the statutes, and therefore, it is within the province of the trial court to fix by sentence the punishment within the limits prescribed by statute.

However, we have recognized an exception to the general rule against interfering with the length of a sentence where the facts establish a violation of a specific constitutional right during sentencing. In Peterson v. State, 775 So.2d 376 (Fla. 4th DCA 2000), we addressed an argument raised by the defendant that section 921.001(1)(h) of the Criminal Punishment Code unconstitutionally limits a defendant's right to appeal a sentence. Section 921.001(1)(h) grants only the state the right to appeal a departure sentence, which is defined as a sentence below the lowest permissible sentence. Observing that a statute cannot be construed so as to restrict a defendant's right to appeal contained in the Florida Constitution, we interpreted section 921.002(1)(h) as not prohibiting all appeals by defendants from sentences under the Code. We noted that a defendant can still raise other constitutional issues, such as judicial vindictiveness. Id. at 378. Again, we point out that statutory and rule provisions which speak only of a defendant's right to appeal a sentence that exceeds the statutory maximum do not operate to foreclose a defendant's right to appellate review of claims concerning constitutional violations during the sentencing process.

In this case, appellant argues that the trial court violated his constitutional right to due process by improperly relying on conduct for which he had been acquitted by the jury's verdict. While the due process clause does prohibit a court from considering charges of which an accused has been acquitted when passing sentence,¹ it does not preclude the court from considering all relevant factors when imposing a sentence authorized for the crime of which the defendant was convicted. The United States Supreme Court stated:

It is well established that a judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence. The sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed.

Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). More recently, the Supreme Court recognized that it is permissible "for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute." Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2358, 147 L.Ed.2d 435 (2000).

Here, the sentencing court acknowledged that appellant had been acquitted by the jury of trafficking in cocaine. However, in deciding upon an appropriate sentence for the lesser...