McShay v. State, 75--86
Decision Date | 10 October 1975 |
Docket Number | No. 75--86,75--86 |
Citation | 321 So.2d 464 |
Parties | Willie Espel McSHAY, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
The trial court sentenced appellant as a recidivist under Fla.Stat. § 775.084 (1971). The court did not follow the procedures outlined in Fla.Stat. § 775.11 (1975), which required the filing of a separate information accusing the alleged recidivist of his former violations, to support the sentencing as a recidivist. In Wright v. State, 291 So.2d 118 (Fla.App.2nd 1974) the court held that the formalities of § 775.11 must be followed. That court reversed for resentencing, without prejudice to the state to proceed under § 775.11.
However, § 775.11 has been repealed, perhaps in response to the suggestion of the Wright court:
'That the procedures under said § 775.11 may well be archaic and cumbersome and that the legislature in the upcoming session may well wish to reconsider its failure in 1971 to repeal that section when it sought to streamline the recidivism concept by enacting § 775.084, . . .' Id. at 121.
In Hamilton v. State, 306 So.2d 600 (Fla.App.2nd 1975), a statute was enacted (after appellant was sentenced), which required a convicted person to be given credit on his or her sentence for time spent in jail awaiting trial. The Hamilton court stated:
But see Ellis v. State, 298 So.2d 527 (Fla.App.2nd 1974), in which the statute at the time of sentencing provided for a lesser term than its predecessor--in force at the time of the commission of the crime. The Ellis court said:
'The courts of Florida have long held that the statute in effect at the time of the commission of the crime, rather than at the time of sentencing, is the controlling statute.' Id. at 527.
In Heilmann v. State, 310 So.2d 376 (Fla.App.2nd 1975) the court explained the distinction in the different methods of applying statutory revisions:
The application of a revision in court rules (enacted after sentencing and dealing with procedure) to a case on appeal has been considered by this court, and decided in accord with Heilmann. Collins v. Wainwright, 311 So.2d 787 (Fla.App.4th 1975). The Collins court stated:
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...date of Section 39.111(6) does not render this statute inapplicable to appellant. Section 39.111(6) is procedural. See McShay v. State, 321 So.2d 464 (Fla.4th DCA 1975). While statutory changes in the law are normally presumed to apply prospectively, procedural changes are to be applied to ......
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...X, Section 9, Florida Constitution. Only procedural or remedial statutory changes may be applied to pending cases. McShay v. State, 321 So.2d 464 (Fla. 4th DCA 1975). Since the Youthful Offender Act alters the prescribed punishments for those persons meeting its requirements, it cannot appl......
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Chukes v. State, 75--1074
...However, the error is harmless since it is no longer necessary to implement § 775.084 F.S. by way of an information. McShay v. State, Fla.App.4th 1975, 321 So.2d 464. Appellant next complains that the state adduced no proof whatsoever to show that imposition of sentence under § 775.084 was ......