PERRY C. BROWN A/K/A PERRY O. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On rehearing, the Fifth District Court of Appeal vacated its prior affirmance of Brown's sentence as a habitual offender, holding that the trial court erred by failing to make a mandatory finding that an enhanced sentence was necessary to protect the public under Florida Statutes section 775.084(8), and that this sentencing error could be raised without a contemporaneous objection.
The court held that the sentencing error was reversible without a contemporaneous objection because section 775.084(3) contains mandatory language similar to the juvenile sentencing statute at issue in State v. Rhoden, and the court cannot logically distinguish between these two kinds of sentencing errors.
[1] A trial court must make a finding that an enhanced sentence is necessary to protect the public before sentencing a defendant as a habitual offender.
[2] A contemporaneous objection is not required to preserve for appeal a trial court's failure to make a necessary finding for habitual offender sentencing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Brown argues the trial court erred in sentencing him as a habitual offender because it failed to make a finding that an enhanced sentence is necessary to protect the public, as is required by section 775.084(8), Fla.Stat. (1983). No contemporaneous objection was made by defense counsel.”
Establishes the core issue: the trial court's failure to make a mandatory statutory finding despite lack of contemporaneous objection.
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Join FLexlaw to unlock all legal intelligencePerry Brown was sentenced as a habitual offender. The trial court did not make a finding that an enhanced sentence was necessary to protect the public…
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SHARP, Judge.
We grant Brown’s motion for rehearing in this case in view of State v. Rhoden, 448 So. 2d 1013 (Fla.1984), and Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984), and vacate our per curiam affirmance, 456 So. 2d 1194 (Fla.App.1984). Brown argues the trial court erred in sentencing him as a habitual offender because it failed to make a finding that an enhanced sentence is necessary to protect the public, as is required by section 775.084(8), Fla.Stat. (1983).1 No contemporaneous objection was made by defense counsel.
In Rhoden, the trial court failed to comply with the provisions of section 39.111(6), Florida Statutes (1981), in sentencing a juvenile defendant as an adult. The Florida Supreme Court held that a contemporaneous objection was not necessary. The language of section 39.111(6) is replete with mandatory language, similar to section 775.084(3). We cannot logically distinguish the two kinds of sentencing errors. Accordingly, we vacate Brown’s sentence and remand this ease for resentencing.
SENTENCE VACATED; REMANDED.
COBB, C.J., and DAUKSCH, J., concur. . (3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender or an habitual misdemeanant. The procedure shall be as follows:
(a) The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as an habitual felony offender or an habitual misdemeanant.
(b) Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.
(c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.
(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.
(e) For the purpose of identification of an habitual felony offender or an habitual misdemeanant, the court shall fingerprint the defendant pursuant to s. 921.241. (Emphasis added).
§ 775.084(3), Fla.Stat. (1983).
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Pope v. State, 475 So. 2d 1021 (Fla. 2d DCA 1985)…was erroneous because the trial court made no finding that the enhanced sentence was necessary to protect the public as required by section 775.04(3), Florida Statutes (1983). We agree. See Walker v. State, 462 So. 2d 452 (Fla.1985); Brown v. State, 457 So. 2d 1079 (Fla. 5th DCA 1984). We find no merit in defendant’s remaining contention. See Rasul v. State, 465 So. 2d 535 (Fla. 2d DCA 1985); McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1985). Reversed and remanded for resentenc-ing. GRIMES, A.C.J., a…
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Brown v. State, 481 So. 2d 1271 (Fla. 5th DCA 1986)…ge. On appellant’s first appeal his sentence as an habitual offender under section 775.-084, Florida Statutes (1983), was vacated because of the failure of the trial judge to make the requisite findings to support that sentence. See Brown v. State, 457 So. 2d 1079 (Fla. 5th DCA 1984). On remand appellant elected to be sentenced under the sentencing guidelines and the trial court departed from the recommended guideline sentencing range. The trial judge, at the sentencing hearing, gave appellant many reasons fo…
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Coy E. Neeley v. State, 498 So. 2d 690 (Fla. 5th DCA 1986)…mand for resentencing. VACATE SENTENCES AND REMAND. ORFINGER and COWART, JJ., concur. . § 784.045, Fla.Stat. (1985). . § 790.07, Fla.Stat. (1985). . § 784.021(1)(a), Fla.Stat. (1985). . § 806.13(l)(b)1, Fla.Stat. (1985). . See Brown v. State, 457 So. 2d 1079 (Fla. 5th DCA 1984), review denied, 461 So. 2d 113 (Fla.) & 464 So. 2d 556 (Fla.1985). . U.S. CONST. art. I, § 10, cl. 1; Art. I, § 10, Fla. Const.…
Authorities Cited
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984)