Massey v. State
| Decision Date | 03 December 1992 |
| Docket Number | No. 79211,79211 |
| Citation | 609 So.2d 598 |
| Parties | 17 Fla. L. Week. S723 James MASSEY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender and Paolo G. Annino, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for respondent.
We review Massey v. State, 589 So.2d 336 (Fla. 5th DCA 1991), because of its conflict with Edwards v. State, 576 So.2d 441 (Fla. 4th DCA 1991). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.
James Massey was charged with burglary of a dwelling and grand theft. Massey was originally represented by counsel. Shortly before trial, counsel withdrew and Massey represented himself. In open court during the trial, the state attorney announced that she was filing a notice of intent to have Massey sentenced as a habitual felony offender. She explained that she had not yet made a copy of the notice. It was apparent that the notice had been prepared earlier because the certificate of service contained the name of Massey's previous attorney. After the jury found Massey guilty as charged, the trial judge stated:
I believe the state is filing notice of intent to habitualize, so we will need a hearing and a sentencing date, Madam Clerk, when you have the opportunity to provide such.
More than three months later, Massey wrote the trial judge a letter in which he stated that a week hence he was scheduled to come before the court for a hearing to be sentenced as a habitual offender. When the sentencing hearing occurred, Massey was once again represented by counsel. His counsel objected because she did not have a copy of the notice in her file, but she did not complain that Massey had not been furnished a copy. The trial judge pointed out that Massey and his attorney were well aware of the fact that the state was going to seek habitual offender status. Massey and his attorney then made extensive arguments seeking to obtain a sentence within the range of the sentencing guidelines. However, the court sentenced Massey as a habitual felony offender 1 to consecutive sentences of fifteen years' imprisonment for burglary of a dwelling and five years' imprisonment for grand theft.
On appeal, Massey argued that his sentence must be reversed because the notice of the state's intention to have him sentenced as a habitual offender had not been served upon him prior to sentencing as required by section 775.084(3)(b), Florida Statutes (1989). The district court of appeal recognized that there had not been strict compliance with the statute but held this to be harmless error because both Massey and his attorney had actual notice of the state's intention to seek habitual felony offender status.
In support of his position, Massey relies upon Edwards v. State, 576 So.2d 441, 442 (Fla. 4th DCA 1991), in which the court held that the failure to provide advance written notice of intent to seek habitual felony offender status is reversible error regardless of whether the defendant is harmed. There are other cases in which a contrary conclusion has been reached. In Roberts v. State, 559 So.2d 289, 290-91 (Fla. 2d DCA), review dismissed, 564 So.2d 488 (Fla.1990), the court held:
Defendant also contends that the enhancement of his sentence as an habitual offender pursuant to section 775.084(3)(b), Florida Statutes (Supp.1988), was invalid due to the failure of the state to serve defendant personally with the requisite notice of enhancement. We do not agree. Defendant's attorney was served with that notice, and there is no question that defendant had knowledge of the notice. While section 775.084(3) does, as defendant argues, state that such notice shall be served "on the defendant and his attorney," 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 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.
Accord Rowe v. State, 574 So.2d 1107 (Fla. 2d DCA 1990), review denied, 576 So.2d 290 (Fla.1991); Bradford v. State, 567 So.2d 911 (Fla. 1st DCA 1990), review denied, 577 So.2d 1325 (Fla.1991).
Under the facts of this case, we believe that the court below reached the proper conclusion. The purpose of requiring a prior written notice is to advise of the state's intent and give the defendant and the defendant's attorney an opportunity to prepare for the hearing. This purpose was clearly accomplished because Massey and his attorney had actual notice in advance of the hearing. It is inconceivable that Massey was prejudiced by not having received the written notice.
The dissenting opinion decries the necessity for ...
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