State v. Wise
| Citation | 744 So.2d 1035 |
| Decision Date | 10 March 1999 |
| Docket Number | No. 98-0782.,98-0782. |
| Parties | STATE of Florida, Appellant, v. Frank WISE, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellee.
Defendant, Frank Wise, was charged with burglary of a dwelling and petit theft. The crimes occurred in the home of his mother, Bernice Wise, on July 31, 1997. The state filed a notice of intent to seek classification of defendant as a prison releasee reoffender pursuant to section 775.082(8), Florida Statutes (1997), which became effective May 30, 1997.1 The defendant then filed a motion asking the trial court to determine the inapplicability of the Prison Releasee Reoffender Act.
At a hearing before the trial court, the defendant argued that the 1997 statute did not apply to him because the statute states that the legislature intended that releasee reoffenders are to be punished to the full extent of the law unless any one of certain specified circumstances exist, specifically that the victim does not desire the offender to receive a mandatory sentence and provides a written statement to that effect. See § 775.082(8)(d)c, Fla. Stat. (1997). The defendant produced such a letter from the victim, Bernice Wise. At the hearing, the court questioned the victim. She testified that she did not want the defendant to receive the mandatory sentence. She also acknowledged her signature on the witness statement. The court ruled that the defendant would be sentenced under the sentencing guidelines for the crimes of burglary of a dwelling and petit theft and refused to apply the harsher sentence2 called for under section 775.082(8)(a). The defendant pleaded guilty to both charges and the judge sentenced him to 3.8 years in prison on count I and 60 days in jail for count II. The state appeals the sentence as illegal. We affirm.
The state argues that the intention of the statute is that the state attorney, rather than the court, determines whether one of the "circumstances" listed warrants the prosecutor not seeking prison releasee reoffender classification of the defendant. To support its position the state points out that after the statute defines "prison releasee reoffender," it further states at subsection (8)(a) 2 that "[i]f the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender." The same subsection provides that "[u]pon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines...." The state reasons that because the state attorney is the one who "determines" that a defendant is a prison releasee reoffender, it follows that it is the state attorney who decides in any given case whether there should be a deviation from the mandatory sentence. In other words, the discretion is with the state attorney not with the court.
We disagree. The function of the state attorney is to prosecute and upon conviction seek an appropriate penalty or sentence. It is the function of the trial court to determine the penalty or sentence to be imposed. State v. Bloom, 497 So.2d 2 (Fla.1986); London v. State, 623 So.2d 527, 528 (Fla. 1st DCA 1993); Dade County Classroom Teachers' Ass'n, Inc. v. Rubin, 258 So.2d 275, 276 (Fla. 3d DCA 1972); Infante v. State, 197 So.2d 542, 544 (Fla. 3d DCA 1967). The trial court is not required to accept the victim's written statement in mitigation. It is left to the trial court in the exercise of its sound discretion whether or not to accept the victim's written statement in mitigation or reject it and sentence the defendant under subsection (8)(a) 2.
We find that the trial court did not abuse its discretion. We note that section 775.082(8) is not a model of clarity and may be susceptible to differing constructions. That being so, section 775.021(1)3 requires us to construe section 775.082(8) most favorably to the accused.
We acknowledge that the Third District Court of Appeal's decision in McKnight v. State, 727 So.2d 314 (Fla. 3d DCA, 1999), conflicts with our decision and that McKnight has certified direct conflict with the Second District Court of Appeal's decision in State v. Cotton, 728 So.2d 251 (Fla. 2d DCA, 1998), with which we are in accord. Thus, we certify direct conflict with McKnight.
AFFIRMED.
1. Section 775.082(8) provides as follows:
(8)(a)1. "Prison releasee reoffender" means any defendant who commits, or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. Any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of an occupied structure or dwelling; or
r. Any felony violation of §§ 790.07, 800.04, 827.03, or 827.071; within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.
2. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment...
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State v. Cotton
...decision in Cotton and remand to that court for further proceedings consistent with this opinion. We also disapprove the opinions in Coleman, Wise, and Speed (interpreting, in dicta, former provision regarding victim's preference as "victim veto") to the extent that they are inconsistent wi......
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Rollinson v. State
...in violation of the separation of powers clause of Article II, Section 3 of the Florida Constitution. In State v. Wise, 24 Fla. L. Weekly D657, 744 So.2d 1035 (Fla. 4th DCA 1999), rev. granted, No. 95,230, 741 So.2d 1137 (Fla. 1999), we construed the statute in a way that reserved some disc......
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Gray v. State, 98-1789.
...certification. As we did in Moon v. State, 737 So.2d 655 (Fla. 5th DCA 1999), we certify conflict with State v. Wise, 24 Fla. Law Weekly D657, 744 So.2d 1035 (Fla. 4th DCA 1999) and State v. Cotton, 728 So.2d 251 (Fla. 2d DCA 1998), rev. granted, 737 So.2d 551 (Fla.1999). We also certify th......
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Baggett v. State
...the decision in Baggett v. State, 747 So.2d 470 (Fla. 5th DCA 1999), which certified conflict with the decisions in State v. Wise, 744 So.2d 1035 (Fla. 4th DCA 1999), quashed, 762 So.2d 523 (Fla.2000) and State v. Cotton, 728 So.2d 251 (Fla. 2d DCA 1998), quashed, 769 So.2d 345 (Fla.2000). ......