Scott v. State
| Decision Date | 27 September 1989 |
| Docket Number | No. 88-3113,88-3113 |
| Citation | 14 Fla. L. Weekly 2254,550 So.2d 111 |
| Court | Florida District Court of Appeals |
| Parties | 14 Fla. L. Weekly 2254 Dudley SCOTT, Appellant, v. STATE of Florida, Appellee. |
We grant the state's motion for rehearing. The original opinion is withdrawn and the following is substituted:
Six years earlier, before the sentencing he appeals here, appellant pled guilty, was placed on probation and was specifically advised that he could be sentenced to up to fifteen years in prison, the statutory maximum for robbery, if he violated his probation. At that time, no effort was made by the state or the trial court to invoke the habitual offender statute. At his current sentencing, however, the state invoked the habitual offender statute. The trial court, after receiving testimony, declared that the appellant was a habitual offender pursuant to section 775.084, Florida Statutes (1977). This raised the statutory cap of allowable prison time to 30 years. Winters v. State, 522 So.2d 816 (Fla.1988). The court then granted the state's motion to aggravate the sentence, finding that the appellant's violations of probation were egregious:
1. The defendant was sentenced on November 8, 1982, in Broward case numbers 82-7403 CF10, and 82-7974 CF10, for two counts of grand theft and robbery respectively. This court did impose four (4) years Florida State Prison in the first case and two (2) years probation consecutive to the prison time in the latter case for the defendant's conviction of robbery. The defendant was under the supervision of the Department of Corrections while on probation on January 24, 1985, which is the date of the defendant's arrest in Dade County for carrying a concealed firearm and grand theft. Additionally, the defendant was still on probation at the time he was arrested for first degree murder, two counts of attempted first degree murder, armed robbery, armed burglary, unlawful possession of a firearm while engaged in a criminal offense, and trafficking in narcotics in Dade County which occurred on January 20, 1986. The defendant was convicted in Dade County case number 85-2047, for carrying a concealed firearm and grand theft, on February 6, 1986, and the defendant was convicted in Dade County case number 86-3028(A) for third degree murder and attempted trafficking in cocaine on March 18, 1988. Therefore, this court finds that the defendant's violations of probation were egregious. State v. Pentaude, 500 So.2d 526 (Fla.1987), Lambert v. State, 517 So.2d 133 (Fla. 4th DCA 1987), Young v. State, 519 So.2d 719 (Fla. 5th DCA 1988).
The appellant first argues that the court erred in sentencing him as an habitual offender.
We doubt that the legislature ever intended that a person could be placed on probation and then, years later, if the probation failed, be subjected to the provisions of the habitual offender statute. In fact, the findings required to order probation are precisely opposite to the findings required to invoke the habitual offender statute. The purpose of habitualization is to protect society against habitual offenders. Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984); § 775.084(4)(a), Fla.Stat. (1987). Probation, on the other hand, may only be imposed if it appears to the court that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law. § 948.01(3), Fla.Stat. (1987). Indeed, in Shead v. State, 367 So.2d 264, 267 (Fla. 3d DCA 1979), the court noted that the required findings under the habitual offender statute and the probation statute are "inconsistent and mutually exclusive." Nevertheless, in Zambuto v. State, 413 So.2d 461 (Fla. 4th DCA 1982), which was not cited to us...
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