DWIGHT FLEMING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwight Fleming appeals his conviction for burglary and a nine-year habitual offender sentence imposed beyond sentencing guidelines. The court affirms the conviction but vacates the sentence and remands for resentencing because the trial court failed to comply with statutory requirements for enhanced sentences: it did not make sufficient written findings of fact demonstrating necessity for the extended term to protect the public.
The trial court's conclusory oral statements that Fleming had not profited from prior incarceration and had launched a criminal career did not satisfy the statutory requirement to find by a preponderance of the evidence that an extended sentence was necessary to protect the public. The trial court erred by failing to prepare a separate written document setting forth specific reasons for the departure from guidelines, as required by statute and procedural rules.
[1] A trial court must provide specific written findings demonstrating the necessity for an extended term of imprisonment to protect the public from recidivistic conduct when…
[2] A trial court's conclusory statements at a sentencing hearing that a defendant's prior record indicates a continued threat to society are insufficient to justify a depart…
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Join FLexlaw to unlock all legal intelligence“the trial court's assessment of relevant circumstances is neither dependent upon nor related to 'the determination of guilt of the underlying substantive offense, and new findings of fact separate and distinct from the crime charged are required'”
Establishes that habitual offender sentencing requires independent findings beyond the underlying crime conviction
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Join FLexlaw to unlock all legal intelligenceFleming was charged with burglary occurring on March 25, 1984. A jury convicted him on November 26-27, 1984. The presentence investigation revealed pr…
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FRANK, Judge.
The appellant, Dwight Fleming, appeals from the trial court’s final orders adjudicating him guilty of burglary and sentencing him as a habitual offender beyond the sentencing guidelines. We affirm the conviction but vacate the sentence and remand for resentencing.
Fleming was charged in an information on May 1, 1984, with burglary in violation of section 810.02, Florida Statutes. The crime allegedly occurred on March 25, 1984. After a trial on November 26 and 27, 1984, a jury found him guilty. After the verdict was entered on January 9, 1985, the state notified Fleming of its intention to seek an enhanced habitual offender sentence pursuant to section 775.084, Florida Statutes. On January 10, 1985, the trial court conducted a sentencing hearing to determine whether Fleming fell within the purview of the habitual offender statute.
At the outset of the sentencing hearing, Fleming’s counsel informed the trial court that Fleming desired to be sentenced within the guidelines’ recommended range of twelve to thirty months of incarceration or community control. During the course of the hearing, the state submitted a presen-tence investigation report disclosing Fleming’s prior conviction for burglary in 1978, a two year prison sentence and his parole in 1980. In addition, the presentence investigation report revealed he had been convicted for burglary in 1981, was sentenced to three years imprisonment and released from prison on March 29, 1982. Baséd upon Fleming’s prior record, the state contended he was a danger to the community and his sentence should be enhanced pursuant to the habitual offender statute. At the conclusion of the hearing, the trial court agreed that Fleming was a habitual offender and that an enhanced sentence was warranted; it sentenced Fleming to nine years of imprisonment. The only statement expressed by the trial court at the hearing justifying the habitual offender sentence appears in the record as follows:
It’s my opinion, sir, you have not seen fit to profit by the jail sentences that you have been given previously, sir. I believe as the State says, that you launched yourself into a career as a criminal, rather than learning from your past experiences and incarceration.
The trial court’s determination to sentence Fleming as a habitual offender constituted a departure from the guideline’s presumptive sentence. Neither a scoresheet nor a separate written document setting forth reasons for exceeding the guidelines, however, is found in the record.
Fleming contends that the trial court failed to comply with section 775.084(3)(d), Florida Statutes. That statute requires a sentencing court following the conduct of an evidentiary hearing to find by a preponderance of the evidence that it is necessary for the protection of the public to sentence a defendant to an extended term of imprisonment. Fleming’s second contention is that the trial court ignored its statutory obligation to prepare a separate written document providing reasons for departing from the sentencing guidelines. We find merit in both contentions.
Although it is not an issue urged by Fleming, we find it appropriate to consider and determine whether the supreme court’s recent opinion in Hendrix v. State, 475 So. 2d 1218 (Fla.1985), affects reliance upon the habitual offender statute in achieving departure from a presumptive sentence. Hendrix bars a departure from the guidelines grounded upon a defendant’s prior conviction for the reason that a prior conviction is a part of the computation leading to the presumptive sentence., “To allow the trial judge to depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence would in effect be counting the convictions twice which is contrary to the spirit and intent of the guidelines.” Id. at 1220.
Implementation of the habitual offender statute is dependent upon a prior conviction.
Thus, save in the rare circumstance where a guidelines sentence would exceed a habitual offender sentence, a literal adherence to Hendrix would functionally repeal section 775.084, a result we perceive not to have been intended in the formulation of guidelines sentencing. Ferguson v. State, 481 So. 2d 924 (Fla.2d DCA 1985).
It is evident from section 775.084 that the presence of a prior conviction in a defendant’s criminal history simply ignites the procedural events which must precede the imposition of a habitual offender sentence. In resolving whether to impose a habitual offender sentence, however, the trial court’s assessment of relevant circumstances is neither dependent upon nor related to “the determination of guilt of the underlying substantive offense, and new findings of fact separate and distinct from the crime charged are required.” Eutsey v. State, 383 So. 2d 219, 223 (Fla.1980). Eutsey makes it equally plain that even though a prior conviction is mechanically essential to the invocation of section 775.-084, it is the subsequent conviction “which triggers the operation of the act.” Id.
Thus, the habitual offender sentence can readily be differentiated from pre-Hendrix departure sentences which were bottomed solely on the fact of prior conviction. See, e.g., Francis v. State, 475 So. 2d 1366 (Fla. 2d DCA 1985). The habitual offender sentence, by contrast, follows from the subsequent offense coupled with “identifiable discrete facts such as general course of behavior, ... family, ... education, vocation and so on.” Eutsey, 383 So. 2d at 225. It is our view that the reference in section 775.084 to a prior conviction is “merely ancillary” to the critical findings forming the bases for the enhanced sentence. Cf. Smith v. State, 480 So. 2d 663, 664 (Fla. 5th DCA 1985).
In the matter at hand the sentencing court, in order to implement the habitual offender statute, was required to find that the present felony was committed within five years of either the last prior felony conviction or two first degree misdemeanor convictions. Wright v. State, 476 So. 2d 325 (Fla. 2d DCA 1985). The data contained in Fleming’s presentence investigation report satisfied the first requirement. The court was then required pursuant to section 775.084(3)(d) to document specific findings facially demonstrating the necessity for an extended term of imprisonment in order to protect the public from recidivistic conduct. Id. at 326.
The trial court’s conclusory statements expressed at the sentencing hearing, however, did not fulfill this requirement. See Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984) (trial court merely stated that based on the defendant’s record and the particular facts of the case an enhanced sentence was necessary to protect the public); Cavallaro v. State, 420 So. 2d 927 (Fla. 2d DCA 1982) (trial court without elaboration stated that the defendant was a career criminal).
We recognize that the subsidiary evidence indicating that an enhanced sentence is necessary to protect the public may in certain circumstances, not present in this proceeding, disclose facts which constitute clear and convincing reasons for departing from the guidelines. Cf. McCuiston v. State, 462 So. 2d 830 (Fla. 2d DCA 1985); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984).
Here, however, the trial court’s mere reliance upon the observation that Fleming would continue to be a threat to society does not meet the statutory standard and, hence, cannot serve as a clear and convincing reason for departure within the meaning of Rule 3.701(d)(11) of the Florida Rules of Criminal Procedure.
The trial court was m error in embodying its reasons for departure, albeit they are inadequate, in the sentencing hearing transcript. Reasons uttered at the sentencing hearing and transcribed in the record do not fulfill the purpose of Rule 3.701(d)(ll). State v. Jackson, 478 So. 2d 1054 (Fla.1985). We also note that the trial court prepared a written sentencing order which varied from its oral pronouncement. Upon resentencing the written order should conform to the oral pronouncement. Bogan v. State, 462 So. 2d 115 (Fla. 2d DCA 1985).
Accordingly, we affirm Fleming’s conviction but vacate his sentence and remand this matter for resentencing consistent with this opinion.
DANAHY, A.C.J., and HALL, J., concur.
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Cited By (11 total)
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Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986)…aximum legal term of confinement gives that statute a useful function under the sentencing guidelines. . Albritton v. State, 476 So. 2d 158 (Fla.1985). . We recognize that Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1986), and Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986), hold otherwise. We also note that the first district in Shull v. State, 481 So. 2d 1294 (Fla. 1st DCA 1986), found no error in considering habitual offender status [*898] as a reason for departure as long as the trial judge provi…
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Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)…sons for imposing a departure sentence, independent of the defendant’s prior criminal record and current offense. Contra Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986); Ferguson v. State, 481 So. 2d 924 [*833] (Fla. 2d DCA 1985); Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986). Appellant also contends that the trial court erred in failing to put the factual bases of the habitual offender determination in Yrating. In Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986), in reversing a sentence, this co…
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Elton Hale v. State, 490 So. 2d 122 (Fla. 2d DCA 1986)…ify a habitual offender sentence constitutes impermissible “double dipping” under Hendrix v. State, 475 So. 2d 1218 (Fla. 1985). We dealt with and rejected this contention in Ferguson v. State, 481 So. 2d 924 (Fla. 2d DCA 1986) and Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986). We adhere to the view that the creation of guidelines’ sentencing was not intended to preempt or vitiate sentencing pursuant to the habitual offender statute. See Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985). We find…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984)
- Smith v. State, 480 So. 2d 663 (Fla. 5th DCA 1985)
- Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984)
- McCUISTON v. State, 462 So. 2d 830 (Fla. 2d DCA 1984)
- Cleveland Wright v. State, 476 So. 2d 325 (Fla. 2d DCA 1985)
- Cavallaro v. State, 420 So. 2d 927 (Fla. 2d DCA 1982)
- Bogan v. State, 462 So. 2d 115 (Fla. 2d DCA 1985)