REGINALD BOGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1986-05-28
No. 84-2679
DANAHY, A.C.J., and LEHAN, J., concur.
489 So. 2d 157 Florida District Court of Appeal, Second District (1986) Caution
Cited by 12 cases

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Holding

A trial court's failure to make specific findings required by the habitual offender statute and its reliance on invalid reasons for departing from sentencing guidelines constitute reversible error.


Headnotes

[1] A trial court must make specific findings of fact demonstrating that an extended term of imprisonment is necessary to protect the public from future criminal behavior whe…

[2] Reclassification of a primary offense based on habitual offender status is not permitted under sentencing guidelines provisions that allow reclassification under enhancem…

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Facts & Procedural History

After being convicted of burglary and grand theft, the appellant was sentenced as a habitual offender. The trial court departed from the sentencing gu…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

The appellant challenges the trial court’s order sentencing him beyond the sentencing guidelines as a habitual offender. After a jury found the appellant guilty of burglary and grand theft, violative of sections 810.02 and 812.014(2)(b), Florida Statutes (1983), the state notified him of its intention to ask the trial court to treat him as a habitual offender under section 775.-084, Florida Statutes (1983). At the initial sentencing hearing, the trial court, relying upon the appellant’s “rapsheet,” found he was a habitual offender, stating “I find, due to his record, it is necessary for the protection of the public and sentence the defendant to an extended term as provided in this law.” After defense counsel objected and argued that a rapsheet is insufficient proof of a prior conviction within the last five years, an element necessary to invoke the habitual offender statute, the trial court continued the hearing to afford the state an opportunity to submit a certified copy of the appellant’s prior felony conviction within the preceding five years. At a subsequent sentencing hearing, a certified copy of such conviction was admitted into evidence and the trial court again found the appellant to be a habitual offender, stating merely that the finding was based upon the appellant’s prior record. The court then departed from the sentencing guidelines’ recommended range shown by a scoresheet to be 3V2-4V2 years of imprisonment and imposed consecutive sentences of 30 years of incarceration for burglary and 10 years of imprisonment for grand theft. At the conclusion of the hearing, the trial court directed the state to prepare and submit a written order setting out the facts of the instant offense, the fact that the appellant perjured himself, and the appellant’s past record of convictions. An order was prepared by the prosecutor and executed by the trial court. The order embodied the reasons articulated by the trial judge as well as the prosecutor’s conclusions that the appellant “displayed a continuing pattern of criminal behavior showing a complete disregard for the criminal justice system” and that he “refused to be a good probation candidate.” In addition to the reasons contained in the written order, the trial court noted at the bottom of the scoresheet the following reasons for departure: “Habitual Offender, Severe Past Record; Facts of the primary offense; Defendant perjured himself at the jury trial.”

We find merit in the four points raised by the appellant. First, the trial court failed to comply with section 775.-084(3)(d) of the habitual offender statute which requires specific findings of fact demonstrating on their face that an extended term of imprisonment is necessary to protect the public from the appellant’s future criminal behavior. See Eutsey v. State, 383 So. 2d 219 (Fla.1980). The trial court’s general statement, that “due to his record, it is necessary for the protection of the public and sentence the defendant to an extended term as provided in this law,” does not satisfy section 775.084(3)(d), see Scott v. State, 446 So. 2d 261 (Fla.2d DCA 1984); nor does the court’s statement uttered at the second sentencing hearing that its finding was based upon the appellant’s prior record. Id. Such omission offends the duty imposed by section 775.084(3)(d) and is appealable regardless of whether the omission was objected to at the hearing. Walker v. State, 462 So. 2d 452 (Fla.1985); Wright v. State, 476 So. 2d 325 (Fla.2d DCA 1985).

The trial court also erred in reclassifying the primary offense at sentencing, burglary, from a second degree felony to a first degree felony based upon the appellant’s habitual offender status, Dominguez v. State, 461 So. 2d 277 (Fla. 5th DCA 1985); that act resulted in the addition of thirty points to the guidelines score thus causing the appellant’s presumptive sentence to fall within a cell of 3¥2-4½ years incarceration instead of community control or 12-30 months incarceration. The guidelines’ provision which permits reclassification of the primary offense under enhancement statutes does not apply to the habitual offender statute. Id. at 278.

A third infirmity in the trial court’s sentencing procedure occurred when the state prepared and the trial court accepted a written order which included not only the trial court’s reasons for departure stated at the sentencing hearing but also the prosecutor’s reasons. The trial court’s acceptance of reasons conceived by the state does not satisfy its duty to determine the reasons for departure. Johnson v. State, 483 So. 2d 839 (Fla.2d DCA 1986).

Finally, the trial court erred by departing from the guidelines for invalid rea sons. Although we have sanctioned a trial court’s reliance upon a “habitual offender” determination, merely noted upon the scoresheet as the reason for departure, Hale v. State, 490 So. 2d 122 (Fla.2d DCA 1986), the habitual offender conclusion must first be reached free from error and in accordance with section 775.084(3). Fleming v. State, 480 So. 2d 715 (Fla.2d DCA 1986). The court also relied upon the facts of the instant case to support its departure. These facts, however, reveal nothing egregious in the circumstances surrounding the commission of the crime so as to warrant departure from the guidelines. See Neal v. State, 487 So. 2d 367 (Fla.2d DCA 1986). Similarly, the appellant’s asserted perjury at trial, without subsequent conviction, and the appellant’s past record of convictions, are invalid reasons. Edwards v. State, 482 So. 2d 553 (Fla.2d DCA 1986).

Accordingly, the appellant’s sentence is vacated and the matter is remanded for resentencing.

DANAHY, A.C.J., and LEHAN, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Nivaldo Echevarria v. State, 492 So. 2d 1146 (Fla. 3d DCA 1986)
    …rst, the trial court failed to comply with the requirements of section 775.084, Florida Statutes (1985), which calls for specific findings of fact before enhancing a defendant’s sentence on the ground that he is an habitual offender. Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986). Second, the trial court erred in aggravating the sentence based on the fact that Echevarria was out on bond at the time the offense was committed. Florida Rule of Criminal Procedure 3.701(d)(ll) prohibits departure predicated on…
  • Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)
    …d) requires specific findings of fact demonstrating on their face that an extended term of imprisonment is necessary to protect the public from the defendant’s future criminal behavior. See Walker v. State, 462 So. 2d 452 (Fla.1985); Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986); Rosemond v. State, 489 So. 2d 1185 (Fla. 1st DCA 1986); Welsh v. State, 486 So. 2d 38 (Fla. 2d DCA 1986); Winters v. State, 475 So. 2d 1025 (Fla. 1st DCA 1985); Hopkins v. State, 463 So. 2d 521 (Fla. 3d DCA 1985); Scott v. State,…
  • Coleman v. State, 521 So. 2d 265 (Fla. 2d DCA 1988)
    …udge cited the defendant’s prior criminal history, but a defendant’s prior record has been held to be an invalid reason for departure in Hendrix v. State, 475 So. 2d 1218 (Fla.1985), Whitehead v. State, 498 So. 2d 863 (Fla.1986), and Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986). That the appellant may have resisted arrest, and failed to appear in court are also invalid reasons. Reasons for departure shall not include factors relating to the instant offense for which convictions have not been obtained, o…

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