GORDON J. ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gordon Roberts appealed his burglary and burglary tools conviction, challenging his sentence as a habitual offender. The Florida District Court of Appeal affirmed most of the sentence but remanded because the trial court failed to include written findings required by statute for habitual offender enhancement.
The court remanded because the trial court failed to make the written findings required by statute for habitual offender enhancement. The court rejected Roberts's contentions regarding personal service (statutory purpose was fulfilled through attorney's service), due process (prior case law controlled), separation of powers (sentencing guidelines constitute substantive law within legislature's province), and equal protection (different treatment rationally relates to the statute's protective purpose).
[1] A trial court must make specific findings required by statute, either in writing or on the record in open court, before enhancing a defendant's sentence as an habitual of…
[2] Service of notice of habitual offender enhancement on a defendant's attorney is sufficient when the defendant has actual knowledge of the notice and the purpose of the no…
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Join FLexlaw to unlock all legal intelligence“the trial court erred in enhancing the defendant's sentence as an habitual offender without including either in a written order or in statements in the record in open court the findings required by section 775.084, Florida Statutes”
Establishes the primary reversible error requiring remand
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Join FLexlaw to unlock all legal intelligenceRoberts was convicted of burglary and possession of burglary tools and sentenced as a habitual offender under section 775.084, Florida Statutes. The t…
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LEHAN, Acting Chief Judge.
Defendant challenges his sentence for burglary and possession of burglary tools. We disagree with all of his contentions except one and remand for the purpose indicated below.
The contention with which we agree is that the trial court erred in enhancing the defendant’s sentence as an habitual offender without including either in a written order or in statements in the record in open court the findings required by section 775.084, Florida Statutes (Supp.1988). We remand for the trial court to either make the requisite findings or, if the record does not support such findings, to vacate the habitual offender sentence. See Little v. State, 440 So. 2d 603 (Fla. 3d DCA 1983); Brown v. State, 435 So. 2d 940 (Fla. 3d DCA 1983).
Defendant also contends that the enhancement of his sentence as an habitual offender pursuant to section 775.084(3)(b), Florida Statutes (Supp.1988), was invalid due to the failure of the state to serve defendant personally with the requisite notice of enhancement. We do not agree. Defendant’s attorney was served with that notice, and there is no question that defendant had knowledge of the notice. While section 775.084(3) does, as defendant argues, state that such notice shall be served “on the defendant and his attorney,” that section gives the purpose of that requirement as being “so as to allow the preparation of a submission on behalf of the defendant” in response to the notice. In this ease there was such a response prepared and made on behalf of defendant, thus the purpose of the statute was fulfilled. We do not conclude that the legislature intended to permit a defendant to avoid the application of the statute on the technical grounds raised here.
Defendant further contends that section 775.084, Florida Statutes (Supp. 1988), unconstitutionally deprived defendant of rights of due process by not requiring proof beyond a reasonable doubt and trial by jury. Notwithstanding his well-presented argument in this regard, we do not agree that Eutsey v. State, 383 So. 2d 219 (Fla.1980), which is contrary to his argument, should not continue to control.
Defendant next contends that section 775.084(4)(e), Florida Statutes (Supp. 1988), constitutes a violation of the separation of powers doctrine in that the legislature provided in section 775.084(4)(e) that habitual offender sentences are not subject to the sentencing guidelines. The argument is that the guidelines were adopted by rules of the Florida Supreme Court and the legislature may not change those rules without violating the separation of powers doctrine. We do not agree. While it is the exclusive province of the Florida Supreme Court to promulgate rules of judicial procedure, Johnson v. State, 336 So. 2d 93, 95 (Fla.1976), the sentencing guidelines constitute substantive law which is within the province of the legislature. See Smith v. State, 537 So. 2d 982 (Fla.1989).
Defendant last contends that section 775.084(4)(e), unconstitutionally violates the equal protection clause in that that section eliminates the accrual of basic and meritorious gain time and thereby improperly creates two classes of prisoners. We do not agree with defendant’s argument that the different treatment of habitual offenders under section 775.084(4)(e) bears no reasonable relationship to the object of the habitual offender legislation which is to provide additional protection to the public from persons from whom additional protection is needed. See Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984). See also King v. State, 557 So. 2d 899 (Fla. 5th DCA 1990). As the state points out, habitual offenders are still entitled to incentive gain time under section 775.-084(4)(e).
Affirmed in part and remanded for proceedings consistent herewith.
THREADGILL and PARKER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (51 total)
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Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…cing hearing. No records were attached to the order to support this recitation. If those records exist, in light of the admission that Mr. Judge’s attorney received the notice, they [*76] would appear to satisfy the requirements of Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA), dismissed, 564 So. 2d 488 (Fla.1990).…1 / 2
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Arnold v. State, 566 So. 2d 37 (Fla. 2d DCA 1990)…rationally related to the legitimate state interests of punishing recidivists more severely than first time offenders and protecting the public by incarcerating career criminals. See Eutsey v. State, 383 So. 2d 219, 223 (Fla.1980); Roberts v. State, 559 So. 2d 289, 291 (Fla. 2d DCA 1990); King v. State, 557 So. 2d 899, 902 (Fla. 5th DCA 1990). The appellant argues that the state has arbitrarily applied the statute, but the record contains no facts to support this allegation. Furthermore, the state need prove…
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Massey v. State, 609 So. 2d 598 (Fla. 1992)…ailure to provide advance written notice of intent to seek habitual felony offender status is reversible error regardless of whether the defendant is harmed. There are other cases in which a contrary conclusion has been reached. In Roberts v. State, 559 So. 2d 289, 290-91 (Fla. 2d DCA), review dismissed, 564 So. 2d 488 (Fla.1990), the court held: Defendant also contends that the enhancement of his sentence as an habitual offender pursuant to section 775.-084(3)(b), Florida Statutes (Supp.1988), was invalid d…
Previewing 3 of 51 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Caracciolo v. State, 557 So. 2d 899 (Fla. 4th DCA 1990)
- Alphonso P. Smith v. State, 537 So. 2d 982 (Fla. 1989)
- Johnson v. State, 336 So. 2d 93 (Fla. 1976)
- Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984)
- Little v. State, 440 So. 2d 603 (Fla. 3d DCA 1983)
- Brown v. State, 435 So. 2d 940 (Fla. 3d DCA 1983)