State v. Manning, No. 92-35
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | HARRIS; COBB; COWART; COWART |
| Citation | 605 So.2d 508 |
| Decision Date | 04 September 1992 |
| Docket Number | No. 92-35 |
| Parties | 17 Fla. L. Week. D2083 STATE of Florida, Appellant, v. Lee Edward MANNING, Appellee. |
Page 508
v.
Lee Edward MANNING, Appellee.
Fifth
District.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellant.
No appearance for appellee.
HARRIS, Judge.
The State of Florida timely appeals the judgment and sentence of Lee Edward Manning. The State raises only the legality of the sentence. 1
Following a jury trial, Manning was found guilty of robbery. The State filed a notice of intent to seek enhanced punishment pursuant to section 775.084, Florida Statutes. At sentencing, Manning did not contest his qualification as an habitual offender but argued that his crimes were the result of an alcohol and drug problem and that he was amenable to treatment (which he was then receiving). Officer John Chisari, of the Orlando Police Department, testified that he works with inmates in the Orange County Jail's Genesis Program. He testified that the program works for some inmates but that others are there just to scam the system. He believed that Manning was not totally involved in the program, but admitted that he had talked with him only three or four times. The court, at sentencing, stated:
Page 509
Mr. Manning, based upon your history, there is no question in my mind of your long-standing drug problem. Based also on your history, there is no question in my mind that you engage in violent or potentially violent actions, when you are under the influence of drugs and alcohol. Therefore, I would find that you not only qualify as a habitual violent felon, but in the event that you don't get this drug problem straightened out, I think it's very necessary for you to be sentenced as a habitual violent felon. Therefore, I'm going to sentence you under these, in this case, as a habitual violent felon, to twelve years in the department of corrections. I'm sorry. To fifteen years in the Department of Corrections, as a habitual violent felon. However, I'm going to suspend that as a condition of serving twenty-four months of community control, followed by three years of supervised probation. I'm doing this because the defendant's history is clearly, criminal history is drug related. The defendant is apparently dealing with these, drug counseling, his drug addiction. Recommendation is from the Genesis program, Chaplain Dan Matucci (phonetic), and a psychiatrist, psychologist, who's doing individual counseling, this is Paul Belditch (phonetic). 2 Based upon that, I'm going to deviate down, because he does appear amenable to dealing with his drug problem, and he has a good prognosis at this time. But Mr. Manning, you understand that you carry with you fifteen years in the state penitentiary in your hip pocket. That means if you are sentenced to that fifteen years because you violated this probation, you will probably do twelve years of that time.
When the State pointed out that section 775.084(4)(b)(2) provided for a mandatory minimum term of ten years, the court responded:
Well Mr. Graham, based upon the recommendations that I have got, based upon his history, it's clear his history is drug related. It's the first time the man has ever dealt with. We sent him up to department of corrections before, and nothing has happened. Nothing worked. We got a guy who has been in jail for five hundred days. It is demonstrated that he is now beginning to work his program. I've got to give him an opportunity to try and show us. I'm not going to just send him up to department of corrections. Not do any good. And if you don't take a chance--I realize it's risky. The circumstances.
I'm going to let the sentence stand at this point. I will state for the record that it would be the Court's intention, if I were to have to resentence him as a habitual felon to department of corrections, given the circumstances that he has demonstrated in the Genesis program, I would probably not sentence him as a habitual felon. I want him to carry around a heavy burden, to insure that he is going to...
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...So.2d 1224 (Fla. 5th DCA 1995); State v. Conte, 650 So.2d 192 (Fla. 5th DCA), review denied, 659 So.2d 270 (Fla.1995); State v. Manning, 605 So.2d 508 (Fla. 5th DCA 1992); Bryant v. State, 591 So.2d 1102 (Fla. 5th DCA 1992); and Pinardi v. State, 617 So.2d 371 (Fla. 5th DCA 1993). We recogn......
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