Reynolds v. State, 91-1349

• Court: Court of Appeal of Florida (US)
• Citation: 598 So.2d 188
• Docket Number: No. 91-1349,91-1349
• Parties: 17 Fla. L. Weekly D1190 James Richard REYNOLDS, Jr., Appellant, v. STATE of Florida, Appellee.
• Decision Date: 05 May 1992

Page 188

598 So.2d 188 17 Fla. L. Weekly D1190 James Richard REYNOLDS, Jr., Appellant,
v.
STATE of Florida, Appellee. No. 91-1349. District Court of Appeal of Florida,
First District. May 5, 1992.

Page 189

William K. Jennings, Crawfordville, for appellant.

Robert A. Butterworth, Atty. Gen., James Rogers, Gypsy Bailey, and Andrea England, Asst. Attys. Gen., for appellee.

SHIVERS, Judge.

Reynolds, the defendant below, appeals his classification and sentencing as a habitual felony offender (HFO) pursuant to section 775.084, Florida Statutes (1989). He alleges three grounds for relief: 1) the enhanced sentences contravene the "sequential convictions" requirement of the HFO statute; 2) the sentence to 10 years' imprisonment followed by 5 years' probation, with a special condition for payment of restitution, in Case No. 91-4771 constitutes error; and 3) the concurrent 5-year prison sentences imposed for violations of probation (VOP) in Cases No. 89-4472, 89-4494, 89-4495 and 89-4496 impermissibly exceed the sentencing guidelines range without written reasons for departure. As to first and third issues, we affirm. On the second issue, we affirm the split sentence of 10 years in prison followed by 5 years of probation, but we reverse the restitution order and remand for further proceedings consistent with sections 775.089(1)(a) & (6) and 948.03(1), Florida Statutes (1989). See Holland v. State, 485 So.2d 471 (1st DCA 1986), pet. for rev. den., 508 So.2d 5 (Fla.1987); Laster v. State, 587 So.2d 674 (Fla. 1st DCA 1991); Wilson v. State, 407 So.2d 1078 (Fla. 1st DCA 1982).

In seeking a HFO classification prior to appellant's sentencing for the 1990 offenses in Cases No. 90-4770, 90-4771, 90-4976, 90-4820 and 90-4821, the state relied on the two prior felony convictions of October 5, 1989 and October 11, 1989 in Santa Rosa and Escambia Counties, respectively. Because the state offered no proof that the second felony conviction resulted from an offense committed after the first felony conviction, appellant alleged a breach of the "sequential conviction" requirement enunciated in Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991). We find appellant's argument unpersuasive in light of section 775.084(1)(a), Florida Statutes (1989) and the holding in State v. Barnes, 595 So.2d 22 (Fla.1992).

Appellant committed the 1990 offenses within the 4-year probationary period resulting from conviction of his prior crimes. He entered a plea of no contest to most of the 1990 charges pursuant to a negotiated plea agreement. Describing the terms of the plea agreement, the trial judge instructed appellant as follows:

Now, your lawyer has indicated her understanding that if you do plead no contest, that the Court would adjudge you guilty of these crimes, but before imposing any sentence would order a presentence investigation to be made and would consider any facts which might be shown by that report. But in any event, it's agreed between your lawyer and the State that a sentence of imprisonment would not exceed a period of ten years.

Appellant alleges error in his sentence in Case No. 90-4771 to 5 years' probation with a special requirement of restitution, following the 10 years' incarceration. The defense did not object to the imposition of a 5-year probationary term, nor did appellant move to withdraw his plea after the actual sentence was pronounced. See Little v. State, 492 So.2d 807 (Fla. 1st DCA 1986); Lepper v. State, 451 So.2d 1020 (Fla. 1st DCA 1984). As to the length of the probationary sentence, we hold that the issue is not cognizable on direct appeal. Murray v. State, 566 So.2d 30 (Fla. 1st DCA 1990); Hadden v. State, 555 So.2d 430 (Fla. 2nd DCA 1990); Duhart v. State, 548 So.2d 302 (Fla. 5th DCA 1989). Accordingly, we dismiss the appeal concerning the 5-year period

Page 190

of probation, without prejudice to appellant's filing in the trial court either a motion to withdraw the plea or a motion under Fla.R.Crim.P. 3.850 to vacate that sentence. See Murray, 566 So.2d at 31; Gill v. State, ...