LARRY COTTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Larry Cotton appeals his conviction for armed robbery and sentence as a habitual violent felony offender. The court affirms the conviction but reverses the sentence, finding that the trial court had discretion in sentencing contrary to the State's representation that a mandatory life sentence with 15-year minimum was required.
The trial court has discretion when sentencing under § 775.084(4)(b) because the statute uses permissive language ('may sentence'). The State's representation that the court had no choice was incorrect, and Cotton's sentence is vacated for a new sentencing hearing where the trial court may reimpose or reduce the sentence.
[1] A trial court has discretion when sentencing a defendant as a habitual violent felony offender under Section 775.084(4)(b), Florida Statutes (1989).
[2] A sentence imposed under Section 775.084(4)(b), Florida Statutes (1989), is permissive, not mandatory.
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Join FLexlaw to unlock all legal intelligence“The language in section 775.-084(4)(b), which states that "[t]he court ... may sentence the habitual violent felony offender as follows: _" (emphasis added), is permissive. Therefore, the trial court has discretion when sentencing a defendant pursuant to this statute.”
Establishes the core holding that the statutory language grants discretion to the trial court rather than mandating a specific sentence
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Join FLexlaw to unlock all legal intelligenceCotton was convicted of armed robbery and found to be a habitual violent felony offender. The State argued to the trial court that pursuant to Florida…
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PER CURIAM.
The defendant, Larry Cotton, appeals his conviction for armed robbery and the sentence imposed pursuant to the habitual violent felony offender statute. We affirm the conviction,1 but reverse the sentence and remand for a new sentencing hearing.
The trial court found the defendant to be a habitual violent felony offender. Thereafter, the State represented to the trial court that pursuant to Section 775.-084(4)(b), Florida Statutes (1989),2 it had no alternative but to sentence the defendant to a life sentence with a minimum of fifteen years.3 The record is not clear as to whether the trial court accepted the State’s argument that it did not have discretion in sentencing the defendant. The trial court sentenced the defendant to a life sentence with a minimum of fifteen years.
The defendant contends that the State incorrectly argued to the trial court that it had no choice but to sentence the defendant to life with a minimum of fifteen years. We agree.
The language in section 775.-084(4)(b), which states that “[t]he court ... may sentence the habitual violent felony . offender as follows: _” (emphasis added), is permissive. Therefore, the trial court has discretion when sentencing a defendant pursuant to this statute. See generally, Henry v. State, 581 So. 2d 928 (Fla.3d DCA 1991). Thus, the defendant’s sentence is vacated and remanded for a new sentencing hearing. On remand, the trial court may, within its discretion, reimpose the present sentence or impose a lesser sentence.
We certify conflict with State v. Allen, 573 So. 2d 170 (Fla. 2d DCA 1991); Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990), rev. denied, 581 So. 2d 166 (Fla.1991); and Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990), rev. denied, 576 So. 2d 291 (Fla.1991).
Conviction affirmed; sentence reversed and remanded for a new sentencing hearing.
. The defendant’s conviction is affirmed based on the authority of Richardson v. State, 583 So. 2d 805 (Fla.3d DCA 1991).
. Section 775.084(4)(b), Florida Statutes (1989), reads in pertinent part as follows:
The court, in conformity with the procedure established in subsection (3), may sentence the habitual violent felony offender as follows:
1. In the case of a felony of the first degree, for life, and such offender shall not be eligible for release for 15 years.
.The State argued to the trial court as follows:
That being the case, since the jury found him guilty of first degree felony punishable by life, under statute 775.084 subsection four A, excuse me, four B, the Court in the case of a felony in the first degree, the Defendant is to be sentenced for life and such offender should not be eligible for release for 15 years.
That is the sentence for violent felony, habitual offender, life with a minimum of 15. No discretion to give him anything other that [sic], (emphasis added).
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Daniels v. State, 634 So. 2d 187 (Fla. 3d DCA 1994)…dge had no alternative but to sentence the defendants to life imprisonment with a minimum mandatory term. Under section 775.084(4)(b), the trial court has discretion when sentencing a defendant as a habitual violent felony offender. Cotton v. State, 588 So. 2d 694 (Fla. 3d DCA 1991), aff’d, 595 So. 2d 957 (Fla.1992). Accordingly, we reverse the sentences imposed upon Daniels and Cochran and remand for a new sentencing hearing. We also find that the remaining points raised by Daniels lack merit. Convictions a…
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White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)…nt challenged on appeal: 10 years on Count I, with a consecutive sentence of 5 years followed by 5 years of probation on Count II. Neither the trial court nor the judgment and sentence specified any minimum mandatory sentence. As in Cotton v. State, 588 So. 2d 694, 695 (Fla. 3d DCA1991), aff'd, 595 So. 2d 957 (Fla.1992), the record is not clear as to whether the trial court based Appellant’s eventual sentence on the state’s arguments and the belief that it lacked any broader discretion in sentencing. Appella…
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Davis v. State, 642 So. 2d 136 (Fla. 3d DCA 1994)…he decision whether to sentence a defendant as such an offender under section 775.084, remains discretionary with the trial court. See Burdick v. State, 594 So. 2d 267 (Fla.1992); Daniels v. State, 634 So. 2d 187 (Fla. 3d DCA 1994); Cotton v. State, 588 So. 2d 694 (Fla. 3d DCA 1991), approved, 595 So. 2d 957 (Fla.1992). Because of this judicial discretion, Florida Rule of Criminal Procedure, Rule 3.720(b), requires the trial court to allow a defendant to offer any relevant evidence that may mitigate a sentenc…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990)
- Vermon T. Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990)
- State v. Allen, 573 So. 2d 170 (Fla. 2d DCA 1991)
- Henry v. State, 581 So. 2d 928 (Fla. 3d DCA 1991)
- Richardson v. State, 583 So. 2d 805 (Fla. 3d DCA 1991)