Roberts v. State, 89-02028
| Decision Date | 28 March 1990 |
| Docket Number | No. 89-02028,89-02028 |
| Citation | 559 So.2d 289 |
| Parties | 15 Fla. L. Weekly D834 Gordon J. ROBERTS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
A.R. Mander, III of Greenfelder, Mander, Hanson & Murphy, Dade City, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellee.
Defendant challenges his sentence for burglary and possession of burglary tools. We disagree with all of his contentions except one and remand for the purpose indicated below.
The contention with which we agree is that the trial court erred in enhancing the defendant's sentence as an habitual offender without including either in a written order or in statements in the record in open court the findings required by section 775.084, Florida Statutes (Supp.1988). We remand for the trial court to either make the requisite findings or, if the record does not support such findings, to vacate the habitual offender sentence. See Little v. State, 440 So.2d 603 (Fla. 3d DCA 1983); Brown v. State, 435 So.2d 940 (Fla. 3d DCA 1983).
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.
Defendant further contends that section 775.084, Florida Statutes (Supp.1988), unconstitutionally deprived defendant of rights of due process by not requiring proof beyond a reasonable doubt and trial by jury. Notwithstanding his well-presented argument in this regard, we do not agree that Eutsey v. State, 383 So.2d 219 (Fla.1980), which is contrary to his argument, should not continue to control.
Defendant next contends that section 775.084(4)(e), Florida Statutes (Supp.1988), constitutes a violation of the separation of powers doctrine in that the legislature provided in section 775.084(4)(e) that habitual offender sentences are not subject to the sentencing guidelines. The argument is that the guidelines were adopted by rules of the Florida Supreme Court and the legislature may not change those rules without violating the separation of powers doctrine. We do not agree. While it is the exclusive province of the Florida Supreme Court to promulgate rules of judicial procedure, Johnson v. State, 336 So.2d 93, 95 (Fla.1976), the sentencing guidelines constitute...
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...refuted by the fact that his attorney prepared a submission that was presented on his behalf at sentencing. See Roberts v. State, 559 So. 2d 289, 291 (Fla. 2d DCA 1990), cause dismissed, 564 So. 2d 488 (Fla. 1990) (finding that the purpose of the notice requirement is fulfilled when a defen......
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...to the guidelines, is totally baseless. § 775.084(4)(e), Fla.Stat. (1989); § 921.001(4)(c)(2), Fla.Stat. (1989); see Roberts v. State, 559 So.2d 289 (Fla. 2d DCA 1990), cause dismissed, 564 So.2d 488 ...
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Massey v. State, 90-1043
...statutory requirement for written notice is to insure (and offer a method of proof) that actual notice was given. In Roberts v. State, 559 So.2d 289, 291 (Fla. 2d DCA), dismissed, 564 So.2d 488 (Fla.1990), the court While section 775.084(3) does, as defendant argues, state that such notice ......
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Judge v. State
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