King v. State
| Decision Date | 01 March 1990 |
| Docket Number | No. 89-502,89-502 |
| Citation | 557 So.2d 899 |
| Parties | 15 Fla. L. Weekly D573 Peter KING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
The issue in this case is the constitutionality of Florida's "Habitual Felony Offender" act, which was substantially rewritten by the 1988 Florida Legislature. See Ch. 88-131, § 6, Laws of Fla. eff. Oct. 1, 1988, now codified as § 775.084. The act provides:
775.084. Habitual felony offenders and habitual violent felony offenders; extended terms; definitions; procedure; penalties.--
(1) As used in this act:
(a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has previously been convicted of two or more felonies in this state;
2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony or other qualified offense of which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and
4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.
(b) "Habitual violent felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for:
i. Unlawful throwing, placing, or discharging of a destructive device, or bomb, or
j. Armed burglary;
2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior enumerated felony or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for an enumerated felony, whichever is later;
3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this section; and
4. A conviction of a crime necessary to the operation of this section has not been set aside in any post-conviction proceeding.
(c) "Qualified offense" means any offense in violation of a law of another state or of the United States that was punishable under the law of such state or the United States at the time of its commission by the defendant by death or imprisonment exceeding 1 year.
(2) For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.
(3) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender. The procedure shall be as follows:
(a) The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender.
(b) Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.
(c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.
(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.
(e) For the purpose of identification of a habitual felony offender or a habitual violent felony offender, the court shall fingerprint the defendant pursuant to s. 921.241.
1. In the case of a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 30.
3. In the case of a felony of the third degree, for a term of years not exceeding 10.
1. In the case of a felony of the first degree, for life, and such offender shall not be eligible for release for 15 years.
2. In the case of a felony of the second degree, for a term of years not exceeding 30, and such offenders shall not be eligible for release for 10 years.
3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years.
(c) If the court decides that imposition of sentence under this section is not necessary for the protection of the public sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is a habitual offender or a habitual violent offender, the court shall make that determination as provided in subsection (3).
(d) A sentence imposed under this section shall not be increased after such imposition.
(e) A sentence imposed under this section shall not be subject to the provisions of s. 921.001. The provisions of chapter 947 shall not be applied to such person. A defendant sentenced under this section shall not be eligible for gain-time granted by the Department of Corrections except that the department may grant up to 20 days of incentive gain-time each month as provided for in s. 944.275(4)(b).
In the instant case, King was charged and convicted of a felony offense which occurred on November 2, 1988. Prior to trial, the state filed a notice of its intention to seek enhanced punishment pursuant to section 775.084. After jury conviction and proof of prior convictions, the court found King to be a habitual offender and sentenced him to ten years in prison. On appeal, King challenges the constitutionality of the present statute on grounds of equal protection and due process (arbitrariness and vagueness).
As to equal protection, King claims that section 775.084 creates inequitable classes because it only applies to those whose prior offenses were committed in the State of Florida (under-inclusive). In Bell v. State, 369 So.2d 932 (Fla.1979), the supreme court addressed an equal protection challenge to a criminal statute:
In order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, 453 (1962). The mere failure to prosecute all offenders is no ground for a claim of denial of equal protection. Moss v. Hornig, 314 F.2d 89, 92 (2d Cir.1963).
Id. at 934. See also Owen v. State, 443 So.2d 173 (Fla. 1st DCA 1983); Meristem Valley Nursery, Inc. v. Metropolitan Dade County, 428 So.2d 726 (Fla. 3d DCA 1983). Section 755.084 rationally advances a legitimate governmental objective. The classification created has some reasonable basis and thus does not offend the constitution simply because it may result in some degree of inequality. Equal protection does not require a state to choose between attacking every aspect of a problem or not attacking it at all. In re Estate of Greenberg, 390 So.2d 40, 46 (Fla.1980), appeal dismissed, 450 U.S. 961, 101 S.Ct. 1475, 67 L.Ed.2d 610 (1981).
Under substantive due process, the test is whether the statute bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, capricious or oppressive. Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974). Courts will not be concerned with whether the particular legislation in question is the most prudent choice, or is a perfect panacea, to cure the ill or achieve the interest intended; if there is a legitimate state interest which the legislation aims to effect, and if the legislation is a reasonably related means to achieve the intended end, it will be upheld. State v. Walker, 444 So.2d 1137, 1138-1139 (Fla. 2d DCA), aff'd, 461 So.2d 108 (Fla.1984). See also State v. Saiez, 489 So.2d 1125, 1129 (Fla.1986); Potts v. State, 526 So.2d 104 (Fla. 4th DCA 1987), approved, 526 So.2d...
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