Smith v. State, 84-138

• Decision Date: 20 December 1984
• Docket Number: No. 84-138,84-138
• Citation: 10 Fla. L. Weekly 12,461 So.2d 995
• Parties: 10 Fla. L. Weekly 12 Kurtis SMITH, etc., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 995

461 So.2d 995

10 Fla. L. Weekly 12

Kurtis SMITH, etc., Appellant, v. STATE of Florida, Appellee.

No. 84-138.

District Court of Appeal of Florida Fifth District.

Dec. 20, 1984.

James B. Gibson, Public Defender, and Lucinda Young, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellant Kurtis Smith appeals his sentence after entering nolo contendere pleas to grand theft and aggravated assault. During discovery, the state had filed notice that it intended to seek an enhanced penalty under the habitual offender act, section 775.084, Florida Statutes. Smith elected to be sentenced under the sentencing guidelines. A scoresheet showed a recommended sentence of twelve to thirty months incarceration.

Over objection, the state introduced a pre-sentence investigation report which revealed that Smith had a lengthy prior adult criminal record relating back to 1969. At the hearing, the state presented the probation-parole investigator who prepared the PSI. On cross-examination, he testified that in compiling the PSI, he used information from an FBI rapsheet, FDLE rapsheet and Orange County Sheriff's Office rapsheet. Smith acknowledged a conviction for burglary of a conveyance on August 31, 1977, but objected to use of the PSI, arguing that a rapsheet was not sufficient evidence of prior convictions and constituted hearsay.

The trial court found that based on the 1977 burglary conviction and sentence, Smith was an habitual offender. Finding that an extended sentence was necessary for the protection of the public because of Smith's extensive criminal record, the court sentenced him to consecutive sentences of seven and one-half years on each charge. The written reason for departure was stated as follows:

Court found defendant to be an habitual offender and imposed extended terms of imprisonment pursuant to F.S. 775.084(4) which the Court finds to be a clear and convincing reason for departure.

Smith first argues that the habitual offender act has been repealed by implication by the sentencing guidelines which provide for consideration and scoring of prior offenses.

This court has held that a sentencing judge may depart from the guidelines based on the defendant's prior criminal record, even though such record is taken into account in determining the recommended sentence. Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984). It follows that the habitual offender act may continue to exist with the guidelines and may constitute a clear and convincing reason to deviate from the recommended sentence, Florida Rule of Criminal Procedure 3.701(d)(11), where its provisions are satisfied. Accord Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984).

In order to impose an enhanced sentence under the habitual offender act, the court must find: (1) that the present offense was committed within five years of the date of a prior felony conviction or within five years of the defendant's release from a prison sentence for a felony, (2) that the defendant was not pardoned for the crime nor was his conviction set aside, and (3) that the enhanced sentence is necessary for the protection of the public.

Smith stipulated that he had been sentenced to four years imprisonment in 1977 for burglary. Certified copies of two certificates of mandatory conditional release were introduced showing that Smith had been released from the Department of Corrections on parole first on March 16, 1979, which was revoked, and again on May 1, 1981. A photograph and fingerprints of Smith, taken by the Department of Corrections, were included with the certificates. The trial judge in this case stated that the photograph was that of Smith. Since both dates of release fall within the five-year period (the present offense was committed on September 18, 1982) and it was uncontested that Smith was not pardoned nor was his 1977 conviction set aside, the first two...