Steiner v. State, 90-01378
| Decision Date | 27 December 1991 |
| Docket Number | No. 90-01378,90-01378 |
| Parties | Charles Henry STEINER, Appellant, v. STATE of Florida, Appellee. 591 So.2d 1070, 17 Fla. L. Week. D166 |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Hillsborough County; Harry Lee Coe, III, Judge.
James Marion Moorman, Public Defender, and Kevin Briggs, Asst. Public Defender, Bartow, for appellant.
Charles Henry Steiner, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Patricia Ann Ash, Asst. Atty. Gen., Miami, for appellee.
We reverse defendant's habitual offender sentence on the basis that the trial court erred by failing to make the supporting findings required by the habitual offender statute. Section 775.084(1)(a) 1-4, Fla.Stat. (1989); Roberts v. State, 559 So.2d 289, 290 (Fla. 2d DCA 1990). Although the issues raised in the special concurrence are worthy of thought, we decline to consider those issues at this time.
Reversed and remanded for proceedings consistent herewith.
I agree that defendant's habitual offender sentence must be reversed on the foregoing basis. I write separately to call attention to and address other issues which are difficult and are inherently involved in the type of sentence imposed in this case and in numerous other cases.
The defendant appeals from a prison sentence of ten years imposed upon him upon the revocation of his community control. An important issue is whether the trial court properly placed defendant on community control after declaring him a habitual offender under section 775.084, Florida Statutes (1989). I would find that the placement of defendant on community control in the context of a sentence imposed pursuant to section 775.084 is illegal for the reasons explained below. In so finding I would recede from this court's prior decision to the contrary in State v. Davis, 559 So.2d 1279 (Fla. 2d DCA 1990). Nonetheless, as also explained below, I would reverse this particular case only on the basis employed by the majority opinion.
Defendant was charged by information with burglary of a conveyance (count I) and petit theft (count II), on the basis of his alleged theft of a CB radio from an automobile on November 2, 1989. According to the record on appeal, shortly after the information was filed, the trial court sua sponte filed in the court record a "subsequent felony notice" that made reference to section 775.084. Nothing on the face of the notice, such as a certificate of service, indicates that a copy was sent to defendant or his trial counsel.
On December 27, 1989, defendant pleaded guilty to both charges. His written plea does not include a negotiated plea agreement and the record does not contain a transcribed plea colloquy. There is nothing in the record to indicate that the predicate offenses for a habitual offender sentence were established at sentencing or that any findings were made at that time. The defendant's scoresheet does indicate that he had a prior record including one second-degree felony and two third-degree felonies. The defendant was not under legal constraint. Under the guidelines, the defendant's recommended sentence was community control or up to thirty months' incarceration. Under the permitted range, he could receive a guidelines sentence of three years' incarceration.
At the sentencing on December 27, 1989, the defendant was adjudicated guilty. For count II, a misdemeanor, he received time served. For count I, the trial court entered an order sentencing him to two years' community control. However, the court indicated on both the judgment and sentence that defendant was being sentenced as a habitual offender. This sentence was not appealed.
In March 1990, the state filed an affidavit alleging that defendant had violated his community control. The affidavit alleged that on two occasions, both taking place on the same day, defendant had "failed to remain confined to his approved residence."
On April 10, 1990, defendant pleaded guilty to the violations. The trial court noted that the defendant had been previously placed on community control by another trial court and that the defendant had violated his community control. As a result, the trial court deferred sentencing and requested an updated report from the probation officer. No such report is in this record.
On April 24, 1990, the trial court sentenced the defendant to ten years' incarceration pursuant to the habitual offender statute and directed the state to obtain certified copies of defendant's prior convictions. The trial court stated that the defendant had a "horrible record" but did not make any new findings to support a habitual offender sentence. It seems clear that the trial court was relying upon the earlier habitual offender adjudication. The defendant appeals this sentence.
Defendant argues that the trial court erred in sentencing him as a habitual offender because (1) the court failed to follow the procedural safeguards of section 775.084 concerning findings to be made at a separate proceeding, and (2) under Scott v. State, 550 So.2d 111 (Fla. 4th DCA 1989), review dismissed, 560 So.2d 235 (Fla.1990), it is improper for a trial court to impose a sentence pursuant to the habitual offender statute upon revocation of community control. Defendant maintains that the maximum sentence he can now receive is a one-cell bump under Lambert v. State, 545 So.2d 838 (Fla.1989), resulting in a permitted sentence of four and one-half years' incarceration. 1
Before addressing defendant's arguments, it should be noted that the trial court's "subsequent felony notice" appears to be facially insufficient. Section 775.084(3)(b) provides, "Written notice shall be served on the defendant and his attorney...." (Emphasis added.) It appears that the notice was merely filed in the court record. Nothing on the face of the notice, such as a certificate of service, reflects that an advance copy ever went to defendant or his attorney in compliance with subsection (3)(b). However, the defendant did not raise this issue below, nor does he urge error in this regard on appeal. Without a transcript of the plea colloquy from the first sentencing hearing, it cannot be determined whether the defendant received a copy of the trial court's notice.
In addition to this procedural problem, the wisdom and propriety of the notice issuing from the trial court is also questionable. The far better practice would be for such a notice to originate from the state. 2 However, section 775.084(3)(b) is silent as to who is entitled to issue the notice. Also, Roberts v. State, 371 So.2d 538 (Fla. 3d DCA 1979), held that a trial judge could properly issue the notice. In the absence of express legislative intent to the contrary, I would not conflict with Roberts in a case where that issue has not been raised below or in this court.
Before considering the propriety of the defendant's resentencing, it is necessary to address the propriety of defendant's original sentence of community control which was purportedly imposed under the habitual offender statute. I would conclude that this original sentence was illegal. However, as will also be explained, this conclusion by itself does not require reversal in this case.
With regard to defendant's original sentence of community control, in Davis this court held that the state may not appeal a probationary sentence imposed upon a defendant found to be a habitual felony offender because such sanction was neither illegal nor subject to the guidelines. 559 So.2d at 1280. I would recede from Davis and hold that it is illegal to place on probation or community control a defendant who has been declared a habitual felony offender in accordance with the procedure set forth in section 775.084(3).
Section 775.084(4) requires the trial court to sentence a habitual felony offender to "a term of years not exceeding...." (Emphasis added.) Construing this language in conjunction with the express legislative intent for sentencing defendants declared to be habitual felony offenders, it becomes evident that the legislature intended enhanced penalties, and not leniency, such as community control or probation. Section 775.0841, Florida Statutes (1989), states the legislative intent to incarcerate habitual offenders "for extended terms." (Emphasis added). Section 775.0843(2)(d) also provides "[a]ll reasonable prosecutorial efforts shall be made to persuade the court to impose the most severe sanction authorized upon a person convicted after prosecution as a career criminal." (Emphasis added.) The granting of community control or probation, the purposes of which are to rehabilitate, for a habitual felony offender is squarely in derogation with the stated legislative goal of enhanced punishment by extended terms of imprisonment.
In Donald v. State, 562 So.2d 792, 795 (Fla. 1st DCA 1990), review denied, 576 So.2d 291 (Fla.1991), the First District explained:
Once the court decides ... to sentence a defendant as an habitual felony offender or habitual violent felony offender, then the court is required to impose sentence in conformity with sections 775.084(4)(a) or 775.084(4)(b).
This court, following Donald, similarly indicated in State v. Allen, 573 So.2d 170, 171 (Fla. 2d DCA 1991), that the sentencing alternatives of the habitual offender statute are mandatory, rather than permissive:
Under section 775.084, as amended in 1988, once the court determines that a defendant has met the criteria as set forth in section 775.084(1)(a) and is a habitual offender, it must sentence the defendant to such sentence as has been designated by the legislature in section 775.084(4)(a) 1, 2, or 3. See Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990). In the instant case, Allen's sentence is for a felony of the first-degree, therefore, according to subsection (4)(a...
To continue reading
Request your trial
-
King v. State, 91-00036
...opinion, I do so with reservations. For reasons including those stated in my concurring opinion in Steiner v. State, 17 F.L.W. D166 (Fla. 2d DCA Dec. 30, 1991) [591 So.2d 1070 (Table) ], I have found it difficult to imagine that the legislature intended that a defendant who has been declare......
- Johnson v. State, 92-941
-
Bamberg v. State, 91-03267
...the 10 years probation was improper in light of the habitual offender finding, relying on the concurring opinion in Steiner v. State, 591 So.2d 1070 (Fla. 2d DCA 1991). However, this court has since held in an en banc opinion that the trial court may impose probation even when the court has......