ROBERT CARL HOEFERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Hoefert was convicted of attempted sexual battery and false imprisonment, but received sentences that exceeded the statutory maximum even after enhancement under the habitual offender statute. The court affirmed his convictions but reversed and remanded for resentencing because the trial judge imposed twenty-year sentences when the statutory maximum for enhanced third-degree felonies was only ten years, and failed to make adequate written findings to support habitual offender designation.
The court held that twenty-year sentences exceeded the statutory maximum for enhanced third-degree felonies, which cannot exceed ten years under section 775.084(4)(a)(3). The trial judge failed to make sufficiently specific written findings with essential findings of fact to support habitual offender designation. The habitual offender statute remains a viable enhancement method under Rule 3.701(d)(10) to increase the statutory maximum penalty, and is properly applied when guideline recommendations exceed statutory maximums.
[1] A trial court may not impose a sentence exceeding the statutory maximum for a third-degree felony, even when utilizing the habitual offender statute, unless the habitual…
[2] A trial court's reasons for adjudging a defendant a habitual offender must be supported by specific written findings of fact based on record evidence.
Previewing 2 of 5 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“Section 775.084(4)(a)(3), Florida Statutes (1983) provides for the enhancement of punishment for a third degree felony only to a term of imprisonment not exceeding ten years, rather than the twenty years the trial judge imposed for each conviction.”
Establishes the dispositive legal error—the sentences imposed exceeded the statutory maximum for enhanced third-degree felonies.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHoefert was tried by jury and found guilty of attempted sexual battery and false imprisonment (charged with attempted sexual battery and kidnapping). …
The full statement of facts, procedural history, and disposition for this case are member content.
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CAMPBELL, Acting Chief Judge.
Appellant raises two issues on his appeal. Because we find merit only in appellant’s sentencing issue, we must affirm appellant’s convictions, but remand for resentencing as discussed herein.
Appellant was charged with attempted sexual battery and kidnapping. He was tried by jury and was found guilty of attempted sexual battery and false imprisonment. As stated, we find no error in his convictions.
Under the sentencing guidelines, appellant’s total recommended sentence was a term of imprisonment of seventeen to twenty-two years. Both of the offenses for which appellant was convicted constitute third degree felonies, each punishable by a term of imprisonment not exceeding five years. §§ 775.082(3)(d), 777.04(4)(c), 787.02(2), 794.011(5), Fla.Stat. (1983). Since appellant’s recommended guidelines sentence exceeded the statutory maximum, the trial judge adjudged appellant to be a habitual offender so as to enhance the statutory maximum punishment for the third degree felonies for which appellant was convicted. The trial judge then imposed twenty-year prison sentences for each conviction to run concurrently.
Appellant argues only two errors in regard to his enhanced sentences. His first argument is that by imposing twenty-year sentences for each conviction, the trial judge exceeded the statutory maximum even though the maximum sentence had been enhanced by utilization of the habitual offender statute. We agree. Section 775.-084(4)(a)(3), Florida Statutes (1983) provides for the enhancement of punishment for a third degree felony only to a term of imprisonment not exceeding ten years, rather than the twenty years the trial judge imposed for each conviction.
Appellant’s only other argument related to his sentences is that the trial judge’s reasons for adjudging appellant a habitual offender were not sufficiently specific to comply with section 775.084(3), Florida Statutes (1983). Appellant suggests that while there was some evidence in the record to support the trial judge’s conclusion that an extended term of imprisonment was necessary as provided for in section 775.084, there were no such written conclusions supported by the essential findings of fact. Walker v. State, 462 So. 2d 452 (Fla.1985); Hopkins v. State, 463 So. 2d 521 (Fla. 3d DCA 1985). We agree and remand for resentencing. If the trial judge is able, by written findings evidenced by specific record facts, to support the conclusion that appellant should be sentenced as a habitual offender, appellant may be so resentenced, but for a term of imprisonment not to exceed ten years for each conviction. If appellant is so resentenced, the trial judge could impose the sentences for each conviction to run consecutive to the other. Because we are remanding with permission for the trial judge to again adjudicate appellant a habitual offender if the proper findings are made, we must address an issue not raised by appellant and, in our opinion, left unanswered in Whitehead v. State, 498 So. 2d 863 (Fla.1986). That issue can be stated as follows:
Is the habitual offender statute still an effective basis on which to exceed the statutory maximum as long as the sentence imposed does not exceed the guidelines recommendation?
That issue was answered in the affirmative by our colleagues of the First District Court of Appeal in Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986). Then because of concern over some of the language in Whitehead, the question posed was again answered in the affirmative and certified to our supreme court in Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986).
We have also expressed concern over Whitehead’s application to the limited issue stated above in Patterson v. State, 506 So. 2d 1143 (Fla. 2d DCA 1987) and Rasul v. State, 506 So. 2d 1075 (Fla. 2d DCA 1987). However, in neither Patterson nor Rasul were we required to address the issue to decide those cases. Now that we are faced squarely with the issue, we have concluded, after considerable study of Whitehead and its progeny and Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 509 So. 2d 1088 (Fla.1987), that the question posed should be answered in the affirmative.
We start first with The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 468 So. 2d 220 (Fla.1985). In subsection (h) of the footnote to that opinion, the supreme court specifically states:
The Committee Note to rule 3.701(d)(10) is revised to clarify the relation of both types of enhancement statute, i.e., reclassification and habitual offender, to the sentencing guidelines. The present text of the note speaks only to reclassification and has generated confusion.
The problem the supreme court was addressing in that footnote1 arises from Rule 3.701(d)(10), which provides:
Sentences exceeding statutory máxi-mums: If the composite score for a defendant charged with a single offense indicates a guideline sentence that exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed.
The very specific language added in the revision of Committee Note to Rule 3.701(d)(10), and adopted in its opinion by the supreme court in 468 So. 2d at 225 so as to alleviate the confusion, is as follows:
If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category. If the offender is sentenced under section 775.084 (habitual offender), the maximum allowable sentence is increased as provided by the operation of that statute. If the sentence imposed departs from the recommended sentence, the provisions of paragraph (d)(ll) shall apply.
In Whitehead, the supreme court, rather than rejecting the added language in the Committee Note it had specifically adopted in 468 So. 2d at 225, uses that very added language, particularly the last sentence thereof, as support for its bolding that habitual offender status is not an adequate reason to depart from recommended guidelines sentences absent compliance with Rule 3.701(d)(ll) as the Committee Note explains.
Recently, we were further confused by language in Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 509 So. 2d 1088 (Fla.1987). That opinion states, at page 164 under section VIII of the opinion: “We reject the commission’s request to revise the committee note to rule 3.701.d.ll as it relates to the Habitual Offender Act. See Whitehead v. State, 498 So. 2d 863 (Fla. 1986).” Justice Grimes, in a special concurring opinion addressed only to section VIII of the opinion, states:
For the reasons expressed in Whitehead v. State, 498 So. 2d 863 (Fla.1986), I can understand the Court’s reluctance to accept the commission’s recommendation that sentences imposed under the Habitual Offender Act need not conform to the guidelines. However, I do find merit in the suggestion of Public Defender, Louis 0. Frost, Jr., that the Habitual Offender Act could be utilized in those instances in which the permitted guidelines range exceeds the total statutory máximums for the offenses charged.
Unfortunately, we do not have access or knowledge as to specifically what “the suggestion of Public Defender, Louis 0. Frost, Jr.” implied. We are unable to tell whether the supreme court majority felt the issue was already adequately spoken to and need not be further addressed and Justice Grimes felt it should be specifically addressed, or whether the majority rejected the merits of Public Defender Frost’s suggestion.
We are persuaded in our ultimate conclusion, however, by the fact that the majority opinion rejects only a request to revise Rule 3.701(d)(ll), which addressed only departures from guideline sentence ranges. The majority opinion does not speak to Rule 3.701(d)(10) but, on the contrary, readopts the Committee Note to Rule 3.701(d)(10) [12 FLW at 166] that it had adopted in revised form in its earlier opinion in 468 So. 2d at 225.
We, therefore, conclude that the habitual , offender statute remains a viable method to enhance the statutory maximum penalty of an offense so as to be useful in connection with rule 3.701(d)(10). However, like our colleagues on the First District Court of Appeal, we certify as a question of great public importance the question as herein-above posed.
Affirmed in part, reversed in part and remanded for resentencing.
SCHOONOVER and FRANK, JJ., concur. . Again, our colleagues on the First District Court of Appeal have addressed that problem and clearly pointed out the difference between a reclassification statute and a pure enhancement statute in Jennings v. State, 498 So. 2d 1373 (Fla. 1st DCA 1986).
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Citator
Cited By (24 total)
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Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)…. 2d 978 (Fla. 1st DCA 1989), in which Parker challenges the validity of his habitual offender sentence because the trial court’s findings were not in writing. The district court affirmed the sentence and acknowledged conflict with Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve the district court’s decision. The pertinent facts reflect that the trial court imposed upon Parker an habitual offender sentence pursuant to section 775.-084, Flor…1 / 2
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State v. Brown, 530 So. 2d 51 (Fla. 1988)…BARKETT, Justice. We have for review Brown v. State, 509 So. 2d 1164 (Fla. 1st DCA 1987), based on express and direct conflict with Hoefert v. State, 509 So. 2d 1090 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the result reached below. Respondent was convicted of armed robbery in the Duval County Circuit Court. After determining that respondent was an habitual offender, t…
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Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)…to question but does not appear to have precluded use of section 775.084 to enhance the sentence permitted under section 775.082 as a predicate for imposition of a sentence that either falls within the guidelines recommended range, Hoefert v. State, 509 So. 2d 1090 (Fla. 2nd DCA 1987); Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1987); Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1987), or departs from the guidelines range for valid reasons other than habitual-offender status, Hester v. State, 503 So. 2d 13…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Bennie Lee Walker v. State, 462 So. 2d 452 (Fla. 1985)
- FLA. RULES OF CRIM. PROCEDURE RE SENTENCING GUIDELINES (RULES 3.701 & 3.988), 509 So. 2d 1088 (Fla. 1987)
- Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)
- THE FLA. BAR: AMENDMENT TO RULES OF CRIM. PROCEDURE (3.701, 468 So. 2d 220 (Fla. 1985)
- Jennings v. State, 498 So. 2d 1373 (Fla. 1st DCA 1986)
- Parks v. State, 463 So. 2d 521 (Fla. 3d DCA 1985)
- Natal Rasul v. State, 506 So. 2d 1075 (Fla. 2d DCA 1987)
- Patterson v. State, 506 So. 2d 1143 (Fla. 2d DCA 1987)