Young v. State
| Decision Date | 01 December 1995 |
| Docket Number | No. 95-303,95-303 |
| Citation | 663 So.2d 1376 |
| Parties | 20 Fla. L. Weekly D2636 Taurance YOUNG, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Dan D. Hallenberg, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
Young appeals from the sentences he received in four different criminal cases after having entered guilty pleas in all, and after being sentenced as an habitual felony offender. On appeal, he argues the trial court erred in accepting his pleas because he was not notified he would be considered for a habitual offender sentencing, and because the trial judge erred in initiating the habitual offender sentencing procedure pursuant to section 775.08401, Florida Statutes (1993). We find no merit in either of these two arguments, but we agree with appellant that he is entitled to relief on three other points he raised: a discrepancy as to whether Young pled guilty to a first or a second degree grand theft charge in one case; imposing special conditions of probation which were not orally pronounced at sentencing; and imposing as a special condition of probation payment of money to First Step of Volusia County, Inc.
The record shows in this case that the trial court accepted Young's guilty pleas in four criminal cases involved in this proceeding. Case No. 94-31931, grand theft and conspiracy to commit grand theft (Sec. 812.014, Fla.Stat. (1993)); Case No. 94-31038, grand theft of the second degree (Sec. 812.014, Fla.Stat. (1993)); Case No. 94-32941, unlawful sale or delivery of a controlled substance (Sec. 817.563, Fla.Stat. (1993)); and Case No. 94-30589, battery (Sec. 784.045, Fla.Stat. (1993)). Young had signed written plea agreements in each case. All but the battery case contained statements that Young could be considered for habitual offender sentences if appropriate, and set out the potential maximum sentence for each crime, if he were to be sentenced in that manner.
At the plea hearing the trial judge asked Young if he understood the plea agreements, and if he had been advised by counsel as to their content. He responded affirmatively. The judge then asked Young:
Do you understand that as a result of these pleas, that a proceeding can be set up by the Court or requested by the state to determine whether or not you have two or more felony convictions, which would classify you as a habitual offender? And that if, in fact, it is shown that you do have the requisite felony convictions, that you could be determined and would be determined to be a habitual felony offender, in which event, those sentencing exposures that I have already explained to you would double?
Young again responded in the affirmative. The judge went through each offense and possible sentence, asking Young if he understood his sentence could be doubled in each case, if he were habitualized. Young responded "Yes, Sir." The court also explained that if habitualized, Young would receive no basic gain time.
Further, at the sentencing hearing, when defense counsel raised an objection to the sentences, the court asked:
Are you claiming that the defendant has not been advised of the habitualization offender sentencing exposure by you in connection with you explaining the possible consequences of his plea prior to the court accepting the plea?
Defense counsel said "No, Sir.". In fact defense counsel agreed with the trial court that he had "explained to him (Young) thoroughly that the Court could find him to be a habitual offender and would set a hearing to make a determination in that regard and if he, in fact, had two or more prior felony convictions, that he would be found by the Court to be found a habitual felony offender and may or may not receive sentence to an extended term...."
Young argues that a defendant must be notified that in fact the state or court intends to seek habitual offender sentencing for that defendant before a plea of guilty can be accepted. Notification that habitualization theoretically or possibly may be sought is not sufficient. However, the Florida Supreme Court has recently clarified that the kind of notice given in this case is legally sufficient. State v. Blackwell, 661 So.2d 282 (Fla.1995); Gibson v. State, 660 So.2d 298 (Fla. 5th DCA 1995).
Young also argues that the trial court could not, on its own initiative, notify him that it would hold a hearing to determine if he was an habitual felony offender, pursuant to section 775.084. The 1993 amendment to this statute requires the state attorney in each judicial circuit to adopt uniform criteria to be used in determining if an offender should be sentenced as an habitual offender, and that if the criteria are deviated from in any case, a written explanation must be filed in the case by the state attorney. 1 The appellant takes the position that under the amended statute, only the state attorney can initiate habitual offender proceedings.
We disagree. The amended statute does not preclude the trial judge from initiating a proceeding to sentence a person as an habitual felony offender. The requirements in the statute, which were added by the amendment, to adopt uniform criteria for eligibility for habitual offender sentencing, and to apply them uniformly were designed to ensure that the state attorney fairly and impartially applies the habitual offender statute. But it does not suggest that the trial judge may not initiate the proceeding. We held that a trial judge has this power under the earlier statute. 2 The amendment appears to have left this power intact.
Both Young and the state agree that the record in this case shows that in Case 94-31038 Young pled guilty to a second degree grand theft charge. However, he was adjudicated guilty and sentenced to a first degree grand theft charge in that case. We agree that the judgment should be corrected on that point. However, the sentence need not be modified because Young was properly sentenced as an habitual offender for that offense to a term of fifteen years in the Department of Corrections, followed by five years on probation.
Young also argues that the trial court improperly imposed conditions of probation in Cases 94-31038 and 94-31931. In these cases the trial court imposed written conditions of probation requiring him to pay for random drug testing and mental health counseling, which it did not orally announce at sentencing. The requirement that a defendant pay for such testing is not authorized by section 948.03(1)(k), Florida Statutes (Supp.1994), and as such constitutes a special condition of probation, which must be orally announced at sentencing. See Luby v. State, 648 So.2d 308 (Fla. 2d DCA 1995). Under these circumstances, the practice of this district is to remand to the trial court, to permit it to resolve the discrepancy between the written record and the record of the oral pronouncement. If these conditions are to be imposed, the court must make its intention known to the appellant, and he must be afforded an opportunity to object. Justice v. State, 658 So.2d 1028 (Fla. 5th DCA 1995). However, we certify the same question to the Florida Supreme Court, in this case as in Justice:
WHERE A SENTENCE IS REVERSED BECAUSE THE TRIAL COURT FAILED TO ORALLY PRONOUNCE CERTAIN SPECIAL CONDITIONS OF PROBATION WHICH LATER APPEARED IN THE WRITTEN SENTENCE MUST THE COURT SIMPLY STRIKE THE UNANNOUNCED CONDITIONS, OR MAY THE COURT ELECT TO REIMPOSE THOSE CONDITIONS AT RESENTENCING?
We strike the special condition of probation in Case 94-31038 that requires Young to pay $60.00 to First Step of Volusia County, Inc., as unauthorized. Tibero v. State, 646 So.2d 213 (Fla. 5th DCA 1994).
AFFIRMED in part; REMANDED for Resentencing in Cases 94-31038 and 94-31931; Special Condition of Probation in Case 94-31038 STRICKEN.
HARRIS, J., concurs specially with opinion.
I concur with Judge Sharp's handling of the Ashley v. State, 614 So.2d 486 (Fla.1993) issue relating to pre-plea notice of intent to habitualize. Young contends that the notice that he might possibly be habitualized if he qualifies as an habitual offender which was contained in his plea form was insufficient Ashley notice. His position, of course, is based on the statement in Ashley:
Consistent with this analysis under rule 3.172, the relevant portion of the habitual offender statute states unequivocally that before a defendant may enter a plea or be sentenced he or she must be given written notice of intent to habitualize ...
Ashley v. State, 614 So.2d at 489-90 (emphasis added).
It is Young's position that the supreme court's use of...
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