Richardson v. State

• Decision Date: 23 July 2003
• Docket Number: No. 4D02-4985.,4D02-4985.
• Citation: 884 So.2d 950
• Parties: Erick RICHARDSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

884 So.2d 950

Erick RICHARDSON, Appellant, v. STATE of Florida, Appellee.

No. 4D02-4985.

District Court of Appeal of Florida, Fourth District.

July 23, 2003.

Opinion Granting Rehearing in Part January 14, 2004.

Erick Richardson, Raiford, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Erick Richardson appeals the summary denial of his motion for postconviction relief, which raised three claims. Richardson was convicted of robbery and sentenced as a habitual felony offender to twenty years in prison. Richardson's claim that the predicate convictions used to declare him a habitual felony offender were not sequential has merit. We reverse.

To establish Richardson as a habitual felony offender, the State relied on prior convictions in case number 93-4322, for possession of cocaine, and 93-15462, for grand theft. The record shows that, although a conviction in the possession case was entered on April 14, 1993, sentencing was stayed and withheld, and Richardson was placed on probation. Richardson was convicted on the grand theft charge on September 23, 1993. On that same day, the court found Richardson in violation of probation on the possession case and sentences were entered on both charges.

The sequential conviction requirement found in the habitual offender statute requires that prior felonies must have "resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony." § 775.084(5), Fla. Stat. (2002)(emphasis added). The supreme court, in Bover v. State, 797 So.2d 1246, 1250 (Fla.2001), reviewed the sequential conviction requirement and held that:

The habitual offender statute, section 775.084(5), specifically provides that the court must have imposed sentence for the two prior convictions separately from each other. Thus, although the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of the same sentencing proceeding.

Thus, a more accurate term for the requirement would be the sequential sentencing proceeding requirement.

In this case, the State argues that Richardson was originally "sentenced to probation" on the possession charge and subsequently "resentenced" after a finding that probation had been violated. This argument is expressly contrary to the law.

A sentence and probation are distinct concepts. See Landeverde v. State, 769 So.2d 457, 462 (Fla. 4th DCA 2000). When a defendant is placed on probation, the court must stay and withhold the imposition of sentence regardless of whether adjudication of guilt is withheld. See § 948.01(2), Fla. Stat.; Fla. R.Crim. P. 3.790(a). Richardson was sentenced on the possession charge for the first time after the finding of a violation of probation. See, e.g., Williams v. State, 566 So.2d 299, 302 (Fla. 1st DCA 1990). Thus, the sentences for the predicate convictions used to classify Richardson as a habitual felony offender were entered on the same day. If entered in the same proceeding, the sequential conviction requirement, as interpreted by our supreme court in Bover, would be violated.

The record attached to the order of denial does not demonstrate that the sentences for the predicate offenses were entered in separate proceedings. Accordingly, the order summarily denying this claim is reversed and the matter is remanded for further proceedings. See Ford v. State, 814 So.2d 1121, 1122 (Fla. 4th DCA 2002)(holding remand for resentencing was required on ground that appellate court could not discern from the record whether predicate convictions were truly sequential as resulting from separate sentencing proceedings).

On remand, because Richardson failed to object to his classification as a habitual felony offender at the time of sentencing, the State shall be permitted to introduce evidence of other qualifying convictions should any exist. See Cameron v. State, 807 So.2d 746, 747 (Fla. 4th DCA 2002).

REVERSED and REMANDED.

STEVENSON, SHAHOOD and HAZOURI, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The State's motion for rehearing is granted in part. We supplement the opinion to address the State's argument on rehearing and to certify conflict with McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003).

To recap, Richardson was convicted of robbery and sentenced as a habitual offender to twenty years in prison. Richardson claimed that the predicate convictions used to declare him a habitual offender were not sequential. To establish Richardson as a habitual felony offender, the State relied on prior convictions in case numbers 93-4322, for possession of cocaine, and 93-15462, for grand theft. The record shows that although a conviction in the possession case was entered on April 14, 1993, Richardson was placed on probation. Richardson was convicted on the grand theft charge on September 23, 1993. On that same day, September 23, the court found Richardson in violation of probation on the possession case and sentences were entered on both charges. We reversed and remanded, finding that the possession of cocaine and grand theft convictions used to declare him a habitual felony offender would not have been "sequential" if the sentences were imposed on the same day at the same sentencing proceeding since he was not "sentenced" on the possession charge until found in violation of probation.

The State contends this court overlooked a dispositive point of law in the previous opinion because the legislature has provided that the placing of a defendant on probation constitutes a "prior conviction" under the habitual offender statute. Section 775.084(2), Florida Statutes (2002), provides:

For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.

Accordingly, the State maintains that the date Richardson was placed on probation should be considered the date of sentencing under the "sequential sentencing proceeding" requirement of section 775.084(5), which provides:

In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.

The State argues that this case is controlled by the plain meaning of section 775.084(2), that the holding in the instant case deprives this subsection of meaning and will lead to absurd results, and that this court should apply a rule of statutory construction whereby subsections two and five are read together to achieve a consistent whole.

We find that subsections two and five are ambiguous when read together, but are not inconsistent. The State's reading is not necessary to give both subsections meaning. Due process requires definiteness in criminal statutes, and criminal statutes must be strictly construed when their meaning is indefinite. Because the language of these subsections is indefinite and susceptible of differing constructions, the rule of lenity applies; the statute must be construed in the manner most favorable to the accused. See § 775.021(1), Fla. Stat. (2002); Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991).

We hold that subsection five imposes a distinct requirement from subsection two. In fact, subsection five begins, "[i]n order to be counted as a prior felony for purposes of sentencing under this section." A strict construction of this provision compels us to find that the imperative of this subsection, that "the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony," applies to any conviction to be counted as a predicate offense under section 775.084.

This restriction modifies subsection two. The placing...