Massey v. State, 90-1043

• Decision Date: 31 October 1991
• Docket Number: No. 90-1043,90-1043
• Citation: 589 So.2d 336
• Parties: James MASSEY, Appellant, v. STATE of Florida, Appellee. 589 So.2d 336, 16 Fla. L. Week. D2765
• Court: Florida District Court of Appeals

Page 336

589 So.2d 336

James MASSEY, Appellant, v. STATE of Florida, Appellee.

No. 90-1043.

589 So.2d 336, 16 Fla. L. Week. D2765

District Court of Appeal of Florida Fifth District.

Oct. 31, 1991.

James B. Gibson, Public Defender, and Paolo G. Annino, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING EN BANC

GRIFFIN, Judge.

We grant the state's motion for rehearing, withdraw our prior opinion and substitute the following opinion in its stead.

Appellant seeks reversal of his sentences as a habitual violent felony offender, contending that written notice of the state's intention to seek enhancement was not served upon him as required by section 775.084(3)(b), Florida Statutes. ¹ For the reason set forth below, we affirm.

Appellant was initially represented below by counsel; however, shortly before trial, counsel withdrew and, at trial, appellant represented himself. In open court, during trial, the state announced and filed its notice of intent to have appellant sentenced as a habitual offender. The prosecutor did remark at the moment of filing that she hadn't had an opportunity to copy the notice but, beyond that, the record does not reflect whether defendant was ever given a copy of the notice. ² The certificate of service on the notice indicates a copy was served on the public defender who had represented defendant but who had, by this time, withdrawn.

At the close of the trial, after appellant was found guilty as charged, the trial judge announced in open court that a date for an adequate hearing would be necessary as the state had filed its notice of intent to habitualize. Most important, on May 7, 1990, one week before the sentencing hearing, appellant wrote the trial judge a letter reminding the court that:

On May 14, 1990 the defendant will come before the court for a hearing to be sentenced as an habitual offender. I would like to request this hearing be held in chambers. The information the defendant intends to offer the court for consideration is highly personal.

At the sentencing hearing, the public defender appointed to represent appellant in post trial proceedings objected only that she did not "have a copy of that notice in [her] file." If this was an objection that she had not been served a notice since her appointment on February 15, 1990--two weeks after the state filed the notice of intent to sentence appellant as a habitual offender in open court during the trial--it was properly overruled because at the time the notice was filed, the appellant was pro se. The only error the state could have made was to fail to give the appellant a copy of the notice. However, at the sentencing hearing there was no objection to any lack of notice to the appellant. ³

Section 775.084(3)(b), Florida Statutes (1989), provides:

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. (emphasis added).

In Nunziata v. State, 561 So.2d 1330 (Fla. 5th DCA 1990) and Sweat v. State, 570 So.2d 1111 (Fla. 5th DCA 1990), we held that a defendant need not show harm in order to assert a lack of written notice as reversible error. However, the issue in this case is not whether Massey must show harm in order to assert the lack of notice as error, but rather whether the state--by affirmatively proving no harm--can bring this technical error within the harmless error rule. ⁴

While lack of any notice, written or otherwise, is a due process violation, lack of written notice, when actual notice is given, is not. ⁵ The statutory requirement for written notice is to insure (and offer a method of proof) that actual notice was given. In Roberts v. State, 559 So.2d 289, 291 (Fla. 2d DCA), dismissed, 564 So.2d 488 (Fla.1990), the court stated:

While section 775.084(3) does, as defendant argues, state that such notice shall be served "on the defendant and his attorney," [only the attorney was served in Roberts ] that section gives the purpose of that requirement as being "so as to allow the preparation of a submission on behalf of the defendant" in response to the notice. In this case there was such a response prepared and made on behalf of the defendant, thus the purpose of the statute was fulfilled. We do not conclude that the legislature intended to permit a defendant to avoid the application of the statute on the technical grounds raised here. [Emphasis added.]

This decision was followed by Rowe v. State, 574 So.2d 1107, 1108 (Fla. 2d DCA 1990), rev. denied, 576 So.2d 290 (Fla.1991) in which the court held:

While appellant's attorney was served with the notice that the state sought to habitualize appellant as is required by section 775.084(3)(b), that notice and the service thereon do not indicate that appellant was personally served with such notice. Our independent examination of the record below, however, reveals that appellant received actual notice of the state's efforts to habitualize him, appeared at the hearing for that purpose with his attorney, and actively contested the state's efforts. We conclude the notice to appellant was sufficient to support his being habitualized.

In the present case, as in Bradford v. State, 567 So.2d 911 (Fla. 1st DCA 1990), rev. denied, 577 So.2d 1325 (Fla.1991), the state's intention to seek habitual offender status was announced in open court at the trial and well in advance of the subsequent sentencing hearing. The Bradford court concluded that such record notice meets the requirement of the statute, especially where, as here, the record also demonstrates that the defendant knew and understood the content of the notice and was fully prepared to present his case against habitual offender treatment. Id. at 915. In this case, an unusually detailed presentation, including a dissection of the PSI, was made on appellant's behalf by both appellant and his attorney at the sentencing hearing. If it is true, as appellant contends, that the purpose of the writing requirement is to be sure a criminal defendant is notified that the state will seek to have him sentenced as a habitual offender, the purpose of the statute was amply met in this case. Failure to deliver the writing to the defendant under the circumstances present here is harmless error at worst.

A close reading of Edwards v. State, 576 So.2d 441 (Fla. 4th DCA 1991), relied upon by the dissent, suggests it is consistent with our opinion in this case. In Edwards, the defendant agreed at his plea hearing to a habitual offender sentence. Even though no written notice was filed beforehand, the Edwards court makes clear this habitual offender sentence was legal. The court stated:

On May 8, 1989, appellant negotiated a settlement in which he was to be sentenced to nine years as an habitual felony offender.

* * * * * *

Appellant's status as an habitual offender was clearly discussed at the May 8 hearing; but the required written notice for sentencing as an habitual offender was not provided to him at that time. Thus, any sentencing over the nine years to which he agreed was not noticed as required by the habitual offender statute. (emphasis added.)

Id. at 441. Since section 775.084(3)(b) does not expressly exempt its application from negotiated plea cases, the Edwards court was not strictly applying the statute; it approved a habitual offender enhanced penalty based solely on the actual notice evidenced by the negotiated plea. The trial court's threat to sentence Edwards to 50 years if he did not appear for sentencing was a part of the discussion in which the court permitted pre-detention release. There was no discussion about the habitual felony statute. When Edwards failed to appear because he confused the date of the hearing (he turned himself in one week later) he was sentenced to fifty years under the habitual offender statute. The appellate court refused to approve this harsh result because Edwards had no notice--oral or written--that he would be sentenced as a habitual offender to more than nine years. The state's effort to cure this problem by serving written notice on the date of the sentence was ineffective. Unlike the present case, no reasonable argument can be made that what happened to Edwards at the June 21, 1990 hearing was the harmless result of a procedural error.

Neither Bradford, Roberts, Rowe ⁶ nor this opinion ignores the legislative requirement of written notice, as the dissent suggests. We recognize that the failure to give such notice is a technical violation of the statute's procedural scheme, ⁷ but the legislature also mandates that:

No judgment shall be set aside or reversed, ... by any court of the state ... for error as to any matter of ... procedure, unless in the opinion of the court ... the error complained of has resulted in a miscarriage of justice.

Sec. 59.041, Fla.Stat. (1989). Here there is no contention that the habitual felony sentence imposed on defendant was a miscarriage of justice due to any lack of notice, preparation or proof--the argument concerns only noncompliance with the statutory form of notice. Here the record clearly shows, beyond any reasonable doubt, this appellant was fully prepared at the sentencing hearing to offer a submission on habitual offender treatment because he knew, a reasonable time before sentencing, that the state would seek to have the court sentence him as a habitual offender.

AFFIRMED.

DAUKSCH, COBB, W. SHARP and HARRIS, JJ., concur.

DIAMANTIS, J., dissents with opinion in which GOSHORN, C.J., and COWART and PETERSON, JJ., concur.

DIAMANTIS, Judge, dissenting.

I respectfully dissent.

Appellant alleges that his sentence as an habitual violent felony offender is improper because written notice of the state's intention to seek enhancement...