State v. Akins

• Decision Date: 31 August 2011
• Docket Number: No. SC10–896.,SC10–896.
• Parties: STATE of Florida, Petitioner,v.Michael Eugene AKINS, Respondent.
• Court: Florida Supreme Court

69 So.3d 261

STATE of Florida, Petitioner,

v.Michael Eugene AKINS, Respondent.

No. SC10–896.

Supreme Court of Florida.

May 26, 2011.Rehearing Denied Aug. 31, 2011.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Patricia A. McCarthy, Assistant Attorneys General, Tampa, FL, for Petitioner.Terry P. Roberts, Tallahassee, FL, for Respondent.PER CURIAM.

This case is before the Court for review of the decision of the Second District Court of Appeal in Akins v. State, ––– So.3d ––––, 2009 WL 5125174 (Fla. 2d DCA 2009). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

Id. at ––––. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative.

FACTS AND PROCEDURAL HISTORY

On January 18, 1991, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, Michael Eugene Akins was adjudicated guilty of the sale and possession of cocaine, a second-degree felony, and sentenced as a habitual felony offender ¹ (HFO) to thirty years in prison for the following reasons:

[I]n '75 and '84 and '87, he had three felonies. The '75 felony was a grand theft. The '84 was a sale and possession. The '87 was a sale and possession of marijuana. His other prior record was a dealing in stolen property. That was it. But he classified because of the three prior felonies.

Akins received a true split sentence, under which he was to serve the first twenty-years of his sentence in prison, and the remaining portion as a suspended sentence to be satisfied by probation. The Second District affirmed Akins' judgment and sentence on direct appeal. See Akins v. State, 591 So.2d 187 (Fla. 2d DCA 1991).

After serving twelve years, Akins was released from prison in 2003. Subsequently, Akins committed technical violations of his probation twice by testing positive for cocaine. The first violation occurred on July 15, 2003. On September 26, 2003, Akins entered an admission to a charge of violation of probation (VOP) and the court continued him on probation. As part of the court order, Akins entered the Goodwill rehabilitation treatment program. According to the Department of Corrections (DOC) reports, Akins performed well and consistently tested negative for cocaine. During this time, Akins completed the program, did not commit any new law violations, and made continual payments as required by the terms of his probation. The State filed an affidavit of VOP, which Akins did not contest. The second violation occurred on June 11, 2004, when Akins was arrested after again testing positive for cocaine. Initially, Akins denied the allegations, but on October 1, 2004, Akins entered a plea withdrawing his prior denial and entering an admission to the VOP charge.

On November 19, 2004, the trial court conducted a sentencing hearing. During the sentencing hearing, Akins' defense counsel presented mitigation and referred to Akins' designation as an HFO. Defense counsel acknowledged that “Mr. Miglore [the prosecutor] [is] going to ask for the maximum, 10 years.” Akins' probation officer recommended that Akins be placed on community control for two years for the VOP. Defense counsel then stated, “I'm asking the court for an appropriate punishment and I'm asking the court to consider several factors. First of all, the nature of his habitualization.” Defense counsel asked the court to either terminate Akins' probation, or alternatively, to follow the recommendation of Akins' probation officer of two years community control. The prosecutor directed the court's attention to the transcript of the hearing held on September 26, 2003, on the prior VOP and the colloquy that transpired between the court and Akins. The prosecutor asked the court to enforce the deal that Akins made with the State during that hearing. The 2003 colloquy proceeded as follows:

THE COURT: You're familiar with the transcript of the last time that you were before the Court before you changed your plea?

THE DEFENDANT: True, sir.

....

THE COURT: We acknowledged that you had been sentenced to 30 years. We acknowledged that you did 20.

THE DEFENDANT: True, sir.

....

THE COURT: Correct?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And then I said, “You are 50 years old.”

THE DEFENDANT: Yes, sir.

THE COURT: And I said, “You are too old for that.”

And you responded, “Yes, Sir.”

THE DEFENDANT: True.

THE COURT: I said, “We are going to give you one last chance.”

You said, “Thank you, sir.”

THE DEFENDANT: True.

THE COURT: I said, “Dabble in drugs and you are going to do the last 10.” Do you remember that?

THE DEFENDANT: Yes, sir.

THE COURT: You answered, “Thank you, sir.”

THE DEFENDANT: Yes, sir.

THE COURT: I asked this question on page 10, line 14: “Do you have any doubt that I will not impose that 10 years for you?”

You answered, “No.”

I said, “I mean, you come back here on another dirty urine or I find out that you're doing something else unlawful, then we just say good-bye,” right?

THE DEFENDANT: True, sir.

THE COURT: And you said, “I appreciate it.”

Akins acknowledged that the court gave him a fair warning at the 2003 sentencing hearing. He also acknowledged that the court told him if he tested positive for cocaine again, “we're going to say good-bye.” Notwithstanding Akins' acknowledgment of the fair warning, the trial court decided not to impose the full balance of the suspended portion of Akins' original sentence. The trial court explained:

THE COURT: I am going to take into consideration the fact that you've entered a plea.

....

THE COURT: I'm also going to take into consideration that the Department of Corrections is probably going to take away some of the gain time that you might have got on that additional—the first 20 years. They're probably going to take some time away that you thought you had earned.

....

THE COURT: So what I'm going to do is I'm going to sentence you to five years. And I'm going to give you credit for the time that you've served on the charge of violation of probation.

The trial court found that Akins was entitled to 239 days credit for time served in the county jail since his arrest on the first VOP. The judge went on to state:

THE COURT: [T]he only reason I didn't give you the 10 is because I know that that [Department of Corrections] is going to take some [gain] time away from you on that 20 years that you've already served. That's the way they work. And I don't control the Department of Corrections, so I'm trying to give you some equity here. But I'm also letting you know that you've had your last chance the last time. So you—in effect, out of the 10 years that you had, I've imposed five.

....

THE COURT: And we're just going to leave it go at that.

....

THE COURT: And you're not any longer going to be on probation. So when you get out of prison, you are on your own.

That same day, the trial court filed a judgment adjudicating Akins guilty of the violation of probation. At that time, the sentencing order did not contain any language regarding Akins' designation as an HFO.

Subsequently, Akins filed a motion seeking additional jail credit. On February 7, 2005, the trial court amended Akins' sentence to allow 270 days, instead of 239 days, of credit for time served.

On April 29, 2005, on its own motion, the trial court amended the judgment to adjudicate Akins as an HFO. The amended judgment reflects the following:

* The defendant is adjudicated a habitual felony offender and is sentenced to an extended term in accordance with the provision of 775.084(4)(a), Florida Statutes. * amended 4/29/05 per court order dated 4/22/05.

On November 20, 2005, Akins filed a motion to vacate, set aside, or correct judgment and sentence pursuant to Florida Rules of Criminal Procedure 3.850, 3.800(a), and 3.800(b) in the trial court. On January 16, 2006, Akins filed an amended motion to vacate, set aside, or correct judgment and sentence. Akins alleged that it was illegal to sentence him as an HFO because there was no oral pronouncement or written judgment made at his VOP sentencing designating him as an HFO and that his due process rights were violated because he was not present when the amendment was made.

Akins also filed an appeal in the Second District, seeking review of his 3.800(a) motion and filed a motion seeking review of a nonappealable rule 3.800(c) order. See Akins v. State, 926 So.2d 412, 413 (Fla. 2d DCA 2006). Akins alleged that the amendment of his sentence offended double jeopardy. Id. at 413. The Second District concluded that it lacked jurisdiction to review Akins' double jeopardy claim because Akins' motion to mitigate and his appeal from the denial of the motion were filed before the amended sentence was rendered. Id. Moreover, the Second District concluded that the record did not establish that Akins first challenged the amendment in the trial court. Id. Thus, the Second District dismissed the appeal without prejudice to his right to raise the issue in a rule 3.800(a) motion. See id.

On June 18, 2007, the trial court ordered the State to respond to Akins' January 16, 2006, amended rule 3.850 motion. Later, on October 29, 2007, the trial court entered its final order denying defendant's amended motion to vacate, set aside, or correct judgment and sentence. In its order, the trial court acknowledged that it did not “specifically announce that the Defendant's sentence was as an HFO.” However, the trial court explained that “a sentencing judge was not required to use the magic words ‘habitual...