ANTONIO SWINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Antonio Swinson appealed his convictions for drug trafficking and weapons charges. The court affirmed his convictions but vacated his sentences due to two sentencing errors: improper application of the habitual offender statute based on out-of-state convictions and improper multiplication of legal constraint points.
The court affirmed Swinson's convictions on all charges. However, the court held that the 1988 version of the habitual offender statute should have applied because the crimes preceded the October 1, 1989 effective date of the amended statute, making his habitual offender designation improper. Additionally, the court held that legal constraint points should be scored only once rather than multiplied for each offense.
[1] A court cannot apply a substantive criminal law to an event that precedes its effective date, as doing so would constitute an ex post facto law.
[2] Under the 1988 version of the habitual offender statute, out-of-state convictions could not be used to establish habitual offender status.
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Join FLexlaw to unlock all legal intelligence“A court cannot apply a substantive criminal law to an event which precedes its effective date. To do so would make it an ex post facto law.”
Establishes the constitutional principle prohibiting retroactive application of criminal statutes that would disadvantage the defendant.
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Join FLexlaw to unlock all legal intelligenceSwinson was convicted of conspiracy to traffic in cocaine, four counts of possession of cocaine, three counts of sale of cocaine, and a weapons charge…
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W. SHARP, Judge.
Swinson appeals from his judgments of guilt and sentences for conspiracy to traffic in cocaine,1 four counts of possession of cocaine,2 three counts of sale of cocaine,3 and a weapons charge.4 He raises various issues to challenge his convictions, all of which we find lack merit. However, we do find two sentencing errors were made: 1) Swinson should not have been sentenced as an habitual offender because his sentencing was based on two Georgia convictions and 2) a multiplier should not have been used in calculating legal constraint points. Accordingly, we vacate the sentences and remand for resentencing.
The habitual offender statute, section 775.084, was amended effective October 1, 1989, to allow consideration of out-of-state convictions.5 However, the crimes for which Swinson was convicted and sentenced in this case were committed between May 2, 1989 and August 31, 1989. Under the 1988 version of this statute, the court may impose an extended term of imprisonment if it finds the defendant “has previously been convicted of two or more felonies in this state_” (emphasis added). The 1988 version did not permit consideration of out-of-state criminal convictions in establishing habitual offender status.6
Defense counsel failed to challenge Swinson’s habitual offender status at sentencing on the ground that the 1988 version should have been applied rather than the 1989 version. But he did object to the classification on other grounds. We can consider this error on appeal because it is a substantive, constitutional one,7 and one that is “fundamental,” in the sense that it need not be “preserved” below to be raised on appeal.8 A court cannot apply a substantive criminal law to an event which precedes its effective date. To do so would make it an ex post facto law. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Lee v. State, 294 So. 2d 305 (Fla.1974).
Swinson also argues that his total score was improperly augmented by multiplying legal constraint points for each count for which he was convicted. This district and the fourth district have permitted such multiplication.9 Our sister courts in the first, second and third districts disagree.10 The Florida Supreme Court has recently resolved this issue in favor of the defendant and has held that legal constraint points should be scored only once rather than for each offense committed. Flowers v. State, 586 So. 2d 1058 (Fla.1991). Thus Swinson’s score must be recalculated.
Accordingly, we affirm the judgments of conviction appealed in this cause; we vacate the sentences, and remand for resentencing.
AFFIRMED in part; sentences VACATED; REMANDED for resentencing.
GOSHORN, C.J., and DAUKSCH, J., concur. . §§ 893.135(l)(b), (3); 893.135(5), Fla.Stat. (1989).
. §§ 893.03(2)(a)4; 893.13(1)®, Fla.Stat. (1989).
. §§ 893.03(2)(a)4; 893.13(1)®, Fla.Stat. (1989).
. § 790.07(2), Fla.Stat. (1989).
. The revised statute provides:
‘Habitual felony offender’ means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses. ... (emphasis added)
. Parrish v. State, 571 So. 2d 97 (Fla. 1st DCA 1990).
. U.S. Const. Art. 1, § 10; Art. 1, § 10, Fla. Const. . Carnegie v. State, 564 So. 2d 233 (Fla. 1st DCA 1990). See also Ghianuly v. State, 516 So. 2d 277 (Fla. 2d DCA 1987).
. Carter v. State, 571 So. 2d 520 (Fla. 4th DCA 1990), jurisdiction accepted, 581 So. 2d 163 (Fla. 1991); Green v. State, 570 So. 2d 1014 (Fla. 5th DCA 1990); Flowers v. State, 567 So. 2d 1055 (Fla. 5th DCA 1990); Walker v. State, 546 So. 2d 764 (Fla. 5th DCA 1989).
. Wilson v. State, 580 So. 2d 303 (Fla. 1st DCA 1991); Cabrera v. State, 576 So. 2d 1358 (Fla. 3d DCA 1991); Scott v. State, 574 So. 2d 247 (Fla. 2d DCA), jurisdiction accepted, 581 So. 2d 1310 (Fla. 1991).
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Reeves v. State, 605 So. 2d 562 (Fla. 2d DCA 1992)…ncarceration to which he could be subject would constitute an impermissible ex post facto law under both the Florida and United States Constitution. See, e.g., Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Swinson v. State, 588 So. 2d 296 (Fla. 5th DCA 1991). Therefore, the sentence may not exceed the foregoing six-year cap. Reversed and remanded for resentenc-ing. PATTERSON and ALTENBERND, JJ., concur.…
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Rankin v. State, 620 So. 2d 1028 (Fla. 2d DCA 1993)…material to Rankin’s case. Because his California conviction apparently cannot be taken into account, Rankin does not qualify as a habitual offender under this version of the statute if he has but one prior Florida conviction. See Swinson v. State, 588 So. 2d 296 (Fla. 5th DCA 1991); Parrish v. State, 571 So. 2d 97 (Fla. 1st DCA 1990). Additional revisions were made by the 1989 legislature, effective October 1, 1989. Ch. 89-280, § 1, Laws of Fla. The concept of “qualified offense” was expanded to include co…
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Calloway v. State, 734 So. 2d 1079 (Fla. 1st DCA 1999)…ntal error to apply an amended version of the habitual offender statute to increase the punishment for an offense committed before the effective date of the amendment. See Carnegie v. State, 564 So. 2d 233, 234 (Fla. 1st DCA 1990); Swinson v. State, 588 So. 2d 296, 297 (Fla. 5th DCA 1991). Notwithstanding the reasonableness of the section 924.051(3) restrictions on the right to appeal, see Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773, 775 (Fla.1996), unpreserved fundamental sentencin…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- Flowers v. State, 586 So. 2d 1058 (Fla. 1991)
- Flowers v. State, 567 So. 2d 1055 (Fla. 5th DCA 1990)
- Walker v. State, 546 So. 2d 764 (Fla. 5th DCA 1989)
- Scott v. State, 574 So. 2d 247 (Fla. 2d DCA 1991)
- Cabrera v. State, 576 So. 2d 1358 (Fla. 3d DCA 1991)
- LEE v. State, 294 So. 2d 305 (Fla. 1974)
- Fla. Perfections, Inc. v. J & D Fin. Corp., 571 So. 2d 520 (Fla. 3d DCA 1990)
- Carter v. State, 571 So. 2d 520 (Fla. 4th DCA 1990)
- Parrish v. State, 571 So. 2d 97 (Fla. 1st DCA 1990)