State v. Rinkins, s. 92-2425

CourtCourt of Appeal of Florida (US)
Citation634 So.2d 763
Docket NumberNos. 92-2425,92-2584,s. 92-2425
Parties19 Fla. L. Weekly D752 STATE of Florida, Appellant, v. Australia Ozell RINKINS, Jr., Appellee.
Decision Date31 March 1994

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellant/cross appellee.

Nancy A. Daniels, Public Defender, Jamie Spivey, Asst. Public Defender, Tallahassee, for appellee/cross-appellant.

MICKLE, Judge.

Following a jury trial, Australia Ozell Rinkins, Jr., was convicted of attempted second-degree murder with a firearm; shooting a firearm at, within, or into a building; and possession of a firearm by a convicted felon. The trial court found that Rinkins meets the requirements of section 775.084, Florida Statutes (1991). A finding was made that sentencing under the habitual felony offender (HFO) statute was necessary to protect the public, and Rinkins was adjudicated an HFO and sentenced under that statute. For the primary offense, he received five years in prison (including a three-year minimum mandatory term for use of a firearm), to be followed by a term of life on probation. He was sentenced to 15 years of probation for each of the other two offenses, to be served consecutively to the attempted-murder prison sentence and to run concurrently with the term of probation for the primary offense. The state appealed pursuant to section 924.07(1), Florida Statutes, and Fla.R.App.P. 9.140(c)(1)(I), on the ground that the sentence on the primary offense is illegal. Rinkins appealed separately challenging his conviction, judgment, and sentence, and the trial court's denial of his motion for a new trial. The two appeals were consolidated for briefing. We affirm.

The record amply demonstrates that on July 16, 1991, Rinkins shot and wounded Lester Troupe with a .45-calibre automatic handgun while attempting to shoot a third person inside a Tallahassee club. At trial, the state offered (and the defense stipulated to) judgments and sentences to prove Rinkins' record of prior felony convictions. Accordingly, we hold that the trial court properly denied the motions for judgment of acquittal and for a new trial.

As to the sentencing, the state contends that the trial court improperly used the HFO statute to sentence Rinkins to a prison term below the permitted range (12 to 27 years) of the sentencing guidelines. Furthermore, the state asserts that five years of imprisonment, to be followed by life on probation, constitutes a downward departure sentence unsupported by any written reasons, in violation of Pope v. State, 561 So.2d 554 (Fla.1990).

The state, in effect, would prefer that we disavow the reasoning enunciated in King v. State, 597 So.2d 309 (Fla. 2d DCA) (en banc), rev. den., 602 So.2d 942 (Fla.1992), in which the Second District Court recognized that the trial court "does retain the discretion to exercise leniency and to sentence a defendant found to be an habitual felony offender ... to a sentence less severe than the maximum sentence that is permitted" by statutory subsection (4)(a). Id. at 314.

Rinkins' primary offense, attempted second-degree murder with a firearm, is a felony of the first degree pursuant to section 775.087(1)(b), Florida Statutes (Supp.1990), carrying a maximum sentence of 30 years' imprisonment under the generic statutory sentencing provisions. Sec. 775.082(3)(b), Fla.Stat. (1989); Howe v. State, 596 So.2d 1227 (Fla. 2d DCA 1992). Section 775.087(2)(a), Florida Statutes (Supp.1990), imposes a three-year minimum mandatory prison sentence where, as here, a firearm is used in the attempted offense.

In the case sub judice, the state filed a notice of intent to have Rinkins classified as an HFO, and the trial court made the requisite findings for adjudicating him as an HFO under section 775.084, Florida Statutes (1991). The applicable sentencing provision of that statute states:

(4)(a) The court, in conformity with the procedure established in subsection (3), shall sentence the habitual felony offender as follows:

1. In the case of a felony of the first degree, for life. Notwithstanding the Legislature's use of "shall" in subsection (4)(a), the Florida Supreme Court has held that sentencing under that provision was intended to be permissive rather than mandatory, so that (4)(a)(1) authorizes "a permissive maximum penalty of life in prison." State v. Brown, 530 So.2d 51, 53 (Fla.1988). This interpretation of (4)(a)(1) was reiterated in Burdick v. State, 594 So.2d 267 (Fla.1992), and the Legislature has not subsequently amended this statutory language so as to indicate a contrary intent. See Grimes v. State, 616 So.2d 996, 999 (Fla. 1st DCA), rev. dism., 617 So.2d 319 (Fla.1993). Once the trial court determined that Rinkins is an HFO and should be sentenced according to section 775.084, the express provisions of section 775.084(4)(e), Florida Statutes (1991), rendered the procedures established by the sentencing guidelines inapplicable. King, 597 So.2d at 315. As to the state's argument that the instant sentence contravenes the legislative intent of section 775.0841, Florida Statutes (1991), to incarcerate career criminals "for extended terms," we note that subsection (4)(e) of the HFO statute specifically exempts those defendants sentenced thereunder from eligibility for gain-time granted by the Department of Corrections, subject to an exception for incentive gain-time. Corley v. State, 586 So.2d 432, 435 (Fla. 1st DCA 1991). Thus, the HFO provisions continue to provide for certain enhancements of the sentence that are inapplicable to guidelines sentences.

At the sentencing hearing, the state requested a sentence of life in prison for Rinkins. Clearly, section 775.084(4)(a)(1), Florida Statutes, authorizes such a penalty, and the trial court could have imposed a more severe sentence than it did. We decline to comment as to whether we might have imposed a different punishment had we been the sentencing tribunal, inasmuch as the decisional law invests the sentencing court with wide discretion on such matters. Stripling v. State, 602 So.2d 663 (Fla. 3d DCA 1992) (reversing life term imposed under subsection (4)(a)(1), where trial judge apparently deemed the sentencing result as mandatory).

We are unwilling to embrace the state's argument that the trial judge lacked the discretion under subsection (4)(a)(1) to...

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4 cases
  • Bell v. State, 94-1143
    • United States
    • Court of Appeal of Florida (US)
    • 3 Marzo 1995
    ...control, the court would be required to enter an order enunciating valid reasons for a downward departure. See State v. Rinkins, 634 So.2d 763 (Fla. 1st DCA 1994); Geohagen v. State, 639 So.2d 611 In sum, the suspended sentence here was imposed on April 20, 1994, well after the May 28, 1992......
  • State v. Rinkins, s. 92-2425
    • United States
    • Court of Appeal of Florida (US)
    • 24 Febrero 1995 the mandate of the Florida Supreme Court in State v. Rinkins, 646 So.2d 727 (Fla.1994), we set aside our opinion in State v. Rinkins, 634 So.2d 763 (Fla. 1st DCA 1994), and remand this cause to the lower tribunal for resentencing, at which time the trial court may provide written reasons......
  • State v. Rinkins
    • United States
    • United States State Supreme Court of Florida
    • 8 Diciembre 1994
    ...Defender and Jamie Spivey, Asst. Public Defender, Tallahassee, for respondent. HARDING, Justice. We have for review State v. Rinkins, 634 So.2d 763 (Fla. 1st DCA 1994), in which the First District Court of Appeal certified the following question as being one of great public DO THE HOLDINGS ......
  • State v. Rinkins
    • United States
    • United States State Supreme Court of Florida
    • 26 Septiembre 1994

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