Peters v. State

• Decision Date: 20 November 2013
• Docket Number: No. 4D11–607.,4D11–607.
• Citation: 128 So.3d 832
• Parties: Keith Lamont PETERS, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

128 So.3d 832

Keith Lamont PETERS, Appellant,

v.STATE OF FLORIDA, Appellee.

No. 4D11–607.

District Court of Appeal of Florida, Fourth District.

Nov. 20, 2013.

Unconstitutional as Applied

West's F.S.A. §§ 775.082(3)(b), 812.13(2)(a)Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

This appeal stems from an order of the trial court resentencing appellant Keith Peters to 99 years in prison for the numerous felonies he committed during a crime spree. Because of an anomaly that arose from the application of 1989 statutes after the decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), we reverse the sentence and remand for resentencing.

The Charges

In November 1989, following a crime spree at the age of sixteen, Peters was charged as an adult in St. Lucie County with six counts of armed robbery, one count of attempted armed robbery as a principal, and two counts of grand theft auto. All of the offenses were alleged to have occurred prior to October 13, 1989, and all but one of the armed robbery counts included a twenty-two-year-old co-defendant, Robert Miller.

Indian River County Charges

In addition to the St. Lucie cases, Peters was also charged with felonies in two Indian River County cases, both of which were alleged to have occurred after October 13, 1989. Peters later pled no contest in one case on December 28, 1990, and was sentenced to 4 1/2 years in prison. On July 8, 1991, Peters pled no contest to the second charge, receiving an additional sentence of 5 1/2 years imprisonment.

1991 Sentencing

After being sentenced in the Indian River cases, Peters entered an open plea of no contest in September 1991 to each count in his St. Lucie County cases. At the time, the sentencing guideline scoresheet prepared by the State included his Indian River convictions as “prior record” and reflected a “recommended” sentence of twenty-seven to forty years in prison, with a “permitted” sentence of twenty-two years to life.

Following a hearing, Judge Walsh sentenced Peters to life in prison on two of the armed robbery charges; consecutive terms of 99 years in prison on the remaining armed robbery counts, each with a three-year minimum mandatory sentence; a consecutive term of fifteen years in prison for attempted robbery; and consecutive terms of five years in prison for each grand theft charge. In imposing this lengthy sentence, Judge Walsh expressed his intention that Peters never be released from prison, regardless of Florida's gain time provisions, stating:

I have given you, sir, a life sentence and a 99 year sentence so no matter how much the legislature screws up your gain time in the future—life right now means life and in the event everything else goes wrong and life still remains the same, then you will be incarcerated for the rest of your life.

It is the court's intention to assure that you are never released from the prison system. That is why I have given consecutive yearly sentences. Even if they start giving gain time down to 90 percent of the sentence, it is the court's intention to assure the protection of the public to make sure you never get out of jail.

Shortly after sentencing, Peters successfully challenged his sentence on the grounds that Judge Walsh had been unaware that he was a juvenile when he committed the offenses. Following an additional hearing, Judge Walsh determined that a youthful offender sentence was inappropriate and re-imposed his previous sentences.

In a separate proceeding, Peters' co-defendant from all but one of the armed robberies was sentenced to thirty years imprisonment.

2011 Resentencing

In October 2009, Peters filed a motion to correct illegal sentence and an emergency petition for writ of habeas corpus, stating as grounds that the scoresheet used by Judge Walsh impermissibly factored in his “out-of-sequence” Indian River County offenses as “prior record,” even though those offenses occurred after he committed the crimes alleged in his six St. Lucie County cases.¹ The trial court agreed and granted the motion, returning the case to Judge Walsh for resentencing. However, since the Public Defender was appointed to represent Peters, and since Judge Walsh was a relative of the circuit's elected Public Defender, Judge Walsh recused himself, resulting in another reassignment to Judge James McCann.

Prior to the sentencing hearing, the State submitted a written memorandum, in which it contended that the trial court should upwardly “depart from the sentencing guidelines by scoring [Peters'] otherwise nonscoreable ‘out of sequence’ convictions” as “prior record.” In addition, the State argued that although, pursuant to the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the trial court could not impose a life sentence without the possibility of parole, it could sentence Peters to multiple, concurrent terms of ninety-nine years in prison.

At the outset of the sentencing hearing, Judge McCann informed the parties that he had “reviewed the prior record,” including the accompanying scoresheets, arrest affidavits, informations, and final judgments. In addition, Judge McCann announced that, “taking into account not only the numerosity but the severity of the offenses,” he would impose an upward departure sentence to the extent Peters' Indian River County convictions could be treated as “prior record.”

The State's Case

Following the trial court's initial ruling, the State called Deloye Henry, an assistant bureau chief with the Florida Department of Corrections, to describe the gain time Peters could receive from a term prison sentence. Henry explained that since Peters' offenses occurred prior to 1993,² he would be subject to basic, statutory gain time, allotting him an automatic lump sum gain time along with the possibility of incentive gain time. As to the twenty years Peters had already served, Henry testified that Peters had been awarded 3,630 days of incentive time, while only losing 390 days. As a result, Henry opined that if Peters was sentenced to 99 years and acted perfectly, he would be eligible for release on February 1, 2034, at the age of 61. If Peters was, on the other hand, to receive only basic gain time, he would still be eligible for release on July 3, 2049, at 76 years of age.

The Defense's Case

Defense counsel called Peters' mother and brother, both of whom testified that Peters had changed his life for the better and learned from his mistakes.

In his defense, Peters testified that although he initially entered prison with a bad attitude, he has since realized the error of his ways, and has managed to stay positive despite his sentence by reading in the law library. This transformation, in Peters' opinion, was exemplified by his disciplinary report (DR) records; of the nine DRs he received during his 20 year prison stay, only three had occurred within the past 17 years. Peters admitted that over the same time he received several correction consultations (CCs), but he explained that those infractions were less serious and involved innocuous actions such as sleeping in class.

On cross examination, the prosecutor questioned Peters regarding a 2002 criminal case out of Volusia County where Peters was charged with tampering with a witness in his brother's murder trial. Peters did not deny threatening the witness, but contended that he had been rehabilitated since the incident.

When asked about the six St. Lucie County robberies, Peters testified that he never carried a firearm, that he was merely a principal, and that his co-defendant was the more violent actor. Peters acknowledged that he knew his co-defendant had shot a victim as they fled one of the robberies, although he could not remember the specifics since the incident had occurred twenty years before. The prosecutor challenged Peters' claim of being a mere “principal,” stating that in one of the police reports the victim identified him as the person who had held a gun to his head and threatened to kill him. Peters persisted in denying his direct involvement, stating again that he “never carried a firearm” and “was a principal.”

In addition, the prosecutor confronted Peters about two separate cases, 90–1066 and 91–342, neither of which was before the trial court in the initial 1991 sentencing. As to 91–342, a second-degree murder charge, Peters denied involvement, pointing to the fact that the case resulted in a nolle prosse. In 90–1066, it was alleged that, during a robbery, Peters and his codefendant kidnapped a woman from a car wash and sexually battered her. Peters admitted that he pled to the lesser included offense of attempted lewd act in the presence of a child, but disclaimed direct participation, explaining that he was a principal in a separate car and that DNA had absolved him; the prosecutor, however, rebuffed Peters' account, stating that the DNA had only returned inconclusive.

Final Argument and Sentence

In closing, the State argued that Peters had failed to demonstrate his rehabilitation given his demeanor and behavior on the stand. Specifically, the State contended that Peters lied on the stand about possessing a firearm and other offenses—referring to a presentence investigation and arrest affidavit that conflicted with Peters' testimony. Given these conflicts, the State implored the court, in the wake of the Graham decision, to enter a sentence which would send a message to other juveniles, stating, “There's got to be some recognition by the overall community that there's going to be punishment; hence the deterrence effect and, again, another basis for the State's argument.” Furthermore, the State urged the court to rely on Judge Walsh's findings by sentencing Peters to 99 years in prison, since such...