Lee v. State, No. 91-1762

CourtCourt of Appeal of Florida (US)
Writing for the CourtBARFIELD; JOANOS; KAHN; BOOTH; ALLEN; BOOTH
Citation606 So.2d 1222
Parties17 Fla. L. Week. D2392 Sylvester O'Neal LEE, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 91-1762
Decision Date12 October 1992

Page 1222

606 So.2d 1222
17 Fla. L. Week. D2392
Sylvester O'Neal LEE, Appellant,
v.
STATE of Florida, Appellee.
No. 91-1762.
District Court of Appeal of Florida,
First
District.
Oct. 12, 1992.
Rehearing Denied Nov. 16, 1992.

Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

EN BANC

BARFIELD, Judge.

Sylvester O'Neal Lee appeals his sentences for kidnapping with a firearm and robbery with a firearm (first degree felonies punishable by life) and sexual battery with a firearm (a life felony). He contends the judge erred in departing from the guidelines, and also in sentencing him as an habitual offender, arguing that first degree felonies punishable by life and life felonies are not subject to enhancement pursuant to section 775.084, Florida Statutes (1983). We affirm in part and reverse in part.

The charged crimes occurred in Panama City during the early morning hours of December 15, 1983. Lee was convicted and sentenced in 1986 to consecutive life terms, a departure from the recommended sentence of life, based on his habitual offender status. The convictions were reversed in Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987), approved, State v. Lee, 531 So.2d 133 (Fla.1988) ( Lee I ), because of the erroneous admission of collateral crime evidence (a bank robbery in Tallahassee the following afternoon).

On retrial, Lee was again convicted and sentenced to consecutive life terms, the reasons for departure his "continuing and persistent pattern of criminal activity" and the timing of the offenses in relation to his release from incarceration. The convictions were reversed in Lee v. State, 566

Page 1223

So.2d 264 (Fla. 1st DCA), rev. den., State v. Lee, 576 So.2d 291 (Fla.1990) (Lee II ), because the trial court had allowed the state to present evidence of the armed bank robbery during rebuttal to impeach Lee's testimony that he did not have possession of a pistol at any time on December 15, 1983. Lee had also challenged the trial court's imposing a sentence pursuant to the sentencing guidelines and utilizing new reasons for departure on resentencing. This court found that since the ruling on the evidentiary question necessitated a new trial, it did not need to reach the two sentencing issues.

After a third trial, Lee was again convicted and found to be an habitual felony offender. He elected to be sentenced under the guidelines, which recommended a life sentence. He received three consecutive life sentences, consecutive to prior sentences. The reason given for departure was the fact that, subsequent to commission of the instant offenses, Lee was convicted of five counts of "Armed Robbery with a firearm--a first degree felony punishable by life imprisonment--in Leon County, Florida" and that these offenses were committed after the instant offenses, but were disposed of previously, and "are not scoreable on the guidelines scoresheet in this case."

Lee argues on appeal that the departure sentence was improper because when he was originally sentenced, the only reason for departure was his habitual offender status (an improper reason for departure), citing Shull v. Dugger, 515 So.2d 748 (Fla.1987), 1 and because even if the unscored convictions had been scored, he would still have fallen into the "life" cell, citing Puffinberger v. State, 581 So.2d 897 (Fla.1991), and Crocker v. State, 581 So.2d 580 (Fla.1991). 2

He also contends that first degree felonies punishable by life and life felonies are not subject to enhancement under section 775.084, Florida Statutes (1983), citing Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), rev. den., 576 So.2d 284 (Fla.1990), 3 construing the 1987 version of 775.084, which he asserts is "virtually identical."

The state contends that Shull is inapplicable because Shull had successfully appealed his sentence, whereas Lee succeeded in having his convictions overturned. It notes that this court refused to address the alleged sentencing errors in Lee II and asserts that this is the first time Lee has been sentenced for his current, valid convictions. It argues that departure based on subsequent offenses is valid, and that under section 921.001(5), the extent of departure is not subject to appellate review. It contends that Lee's reliance on Puffinberger is misplaced because that case specifically dealt with unscored juvenile offenses, and does not stand for the broader proposition that all departures based on non-scoreable offenses must be within the resulting recommended range if they had been scored.

The state points out that a total score of 583 results in a recommendation of life

Page 1224

imprisonment (the highest cell), that Lee scored 944 without the five unscored offenses, and that if these offenses had been scored, he would have scored 2127, but still with the same recommendation of life imprisonment. It asserts that if this court finds that the extent of departure here can be limited, Lee will have benefitted twice from the fact that the convictions for the five subsequently-committed Leon County offenses were entered prior to the sentencing for the instant offenses: because the trial court will be precluded from departing at all in the instant case, and because in sentencing for the Leon County offenses, that trial court could not consider the instant offenses as "prior record."

Regarding the habitual offender sentence for the first degree felonies punishable by life (kidnapping and robbery), the state cites Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA 1991) (en banc), 4 noting that the pertinent part of the 1983 statute is "virtually identical" to the version construed in Burdick.

As for the habitual offender sentence for the life felony (sexual battery), the state acknowledges that this court held in Johnson v. State, 568 So.2d 519 (Fla. 1st DCA 1990), 5 and in Gholston v. State, 589 So.2d 307 (Fla. 1st DCA 1990), approved, 17 F.L.W. S554, 1992 WL 171250 (Fla. July 23, 1992), 6 that life felonies are not subject to the habitual offender statute. However, it asserts that the judge properly sentenced Lee as an habitual offender for sexual battery with a firearm because section 794.011(3), under which he was convicted, provides that this offense is punishable under section 775.084, citing Watson v. State, 504 So.2d 1267 (Fla. 1st DCA 1986), rev. den., 506 So.2d 1043 (Fla.1987).

Watson, who had been convicted of sexual battery with great force (a life felony) had argued that section 775.084, Florida Statutes (1983), "only provides for enhancement of first, second and third degree felonies and therefore it is inapplicable to a defendant, such as Watson, who is...

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4 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. State, 606 So.2d 1222 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Terners of Miami Corp. v. Freshwater, 59......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. State, 606 So.2d 1222 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Terners of Miami Corp. v. Freshwater, 59......
  • Lamont v. State, Nos. 79586
    • United States
    • United States State Supreme Court of Florida
    • 24 Diciembre 1992
    ...do not apply to life felonies, we fail to see the logic of the legislative intent it ascribes to the 1975 enactment. Lee v. State, 606 So.2d 1222 (Fla. 1st DCA Both the plain language and the history of the relevant statutes lead us to hold that one convicted of a life felony is not subject......
  • Lee v. State
    • United States
    • United States State Supreme Court of Florida
    • 15 Marzo 1993
    ...320 617 So.2d 320 Lee (Sylvester O'Neal) v. State NO. 80,622 Supreme Court of Florida. Mar 15, 1993 Appeal From: 1st DCA, 606 So.2d 1222 Disposition: Rev....
4 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. State, 606 So.2d 1222 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Terners of Miami Corp. v. Freshwater, 59......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2006
    ...DCA 1992) (en banc decision released without antecedent publication of panel decision), quashed by 616 So.2d 52 (Fla.1993); Lee v. State, 606 So.2d 1222 (Fla. 1st DCA 1992) (en banc decision released without antecedent publication of panel decision); Terners of Miami Corp. v. Freshwater, 59......
  • Lamont v. State, Nos. 79586
    • United States
    • United States State Supreme Court of Florida
    • 24 Diciembre 1992
    ...do not apply to life felonies, we fail to see the logic of the legislative intent it ascribes to the 1975 enactment. Lee v. State, 606 So.2d 1222 (Fla. 1st DCA Both the plain language and the history of the relevant statutes lead us to hold that one convicted of a life felony is not subject......
  • Lee v. State
    • United States
    • United States State Supreme Court of Florida
    • 15 Marzo 1993
    ...320 617 So.2d 320 Lee (Sylvester O'Neal) v. State NO. 80,622 Supreme Court of Florida. Mar 15, 1993 Appeal From: 1st DCA, 606 So.2d 1222 Disposition: Rev....

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