ARTHUR KING FORREST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arthur King Forrest appealed his conviction and sentence including habitual offender enhancement and sentencing guidelines departure. The court affirmed the conviction but reversed the habitualization and departure from sentencing guidelines because the trial court failed to make adequate factual findings supporting the enhanced sentence.
The habitualization was improper because the trial court made only a conclusory statement parroting statutory language without explaining specific facts establishing why the defendant was dangerous. Additionally, under the 1987 statute, habitual offender status was not a valid independent reason for departure from sentencing guidelines, and the trial court provided no other written or oral reason for departure.
[1] A defendant waives the right to consolidation of charges by failing to object to separate trials.
[2] A trial court's finding that a defendant is a danger to the community is insufficient to justify habitual offender status without further explanation of the reasons for t…
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Join FLexlaw to unlock all legal intelligence“However, the necessary findings must explain the reason why the defendant is dangerous.”
Establishes that habitual offender findings require specific explanation of dangerousness, not mere conclusions
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Join FLexlaw to unlock all legal intelligenceForrest was charged with multiple crimes in August 1988 and convicted. At sentencing, the trial court declared him a habitual offender, finding he was…
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PER CURIAM.
Arthur King Forrest appeals his conviction and the ensuing sentence which included habitualization and enhancement.
We affirm the conviction, finding that appellant waived the right to consolidation of the charges against him. Fla. R.Crim.P. 3.151(b); State v. Harris, 357 So. 2d 758 (Fla. 4th DCA 1978). Having done so, he was not entitled to subsequent discharge on the related felony charges after trial on the misdemeanor charges.
The trial court declared appellant a habitual offender, reciting that the court “finds he’s a danger for the community and for the protection of the public, he ought to be confined for a longer period of time than the sentencing guidelines.”
This case is governed by the 1987 version of the habitual offender statute because appellant committed the instant crimes in August 1988; the 1988 amendment to section 775.084 was not effective until October 1, 1988. The 1987 version required the trial court to find that an extended term of incarceration was necessary for the protection of the public. § 775.084(3), Fla.Stat. (1987); Eutsey v. State, 383 So. 2d 219 (Fla.1980). The findings need not be in writing; it is sufficient if they appear in the transcript. Parker v. State, 546 So. 2d 727 (Fla.1989); Eutsey, 383 So. 2d at 226 (citing King v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979)). There are no magic words that constitute specific findings of fact. Winters v. State, 500 So. 2d 303, 305 (Fla. 1st DCA 1986), approved, 522 So. 2d 816 (Fla.1988). However, the necessary findings must explain the reason why the defendant is dangerous. Bohannon v. State, 546 So. 2d 1081, 1082 (Fla. 3d DCA 1989) (citing Spivey v. State, 533 So. 2d 306, 309 (Fla. 1st DCA 1988)), rev. denied, 557 So. 2d 35 (Fla. 1990). It is not enough for the court, as it did here, merely to make a conclusory statement parroting the language of the statute that an extended term of incarceration is necessary for the protection of the public. Pugh v. State, 547 So. 2d 289, 290 (Fla. 1st DCA 1989) (mere conclusory statement and reference to appellant’s criminal history not enough); Bohannon (statement that “I do find from this appalling record, Mr. Bohannon, that you are a disgrace and I am, for the necessity of the protection of the public, sentencing you” as a habitual offender not enough), 546 So. 2d at 1082; Sims v. State, 487 So. 2d 37 (Fla. 2d DCA 1986) (mere statement that enhanced sentencing is necessary for protection of the public due to appellant’s continuing criminal activity not enough).
Upon resentencing, the trial court may again habitualize appellant if it makes proper findings in support of this decision. King v. State, 580 So. 2d 169 (Fla. 4th DCA 1991) (en banc).
Appellant next argues that his status as a habitual offender is not a valid reason for departure under the pre-1988 version of the statute. State v. Brown, 530 So. 2d 51 (Fla.1988); Whitehead v. State, 498 So. 2d 863 (Fla.1986); King v. State, 511 So. 2d 1131 (Fla. 4th DCA 1987), approved, 520 So. 2d 582 (Fla.1988). The trial court here gave no other written or oral reason for departure. Therefore, appellant is correct that the trial court erred in departing from the guidelines range.
Upon remand, appellant must be sentenced within the guidelines. See, e.g., Pope v. State, 561 So. 2d 554 (Fla.1990).
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
GLICKSTEIN, C.J. and ANSTEAD and HERSEY, JJ., concur.
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Citator
Cited By
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Alvaro Valdez v. State, 622 So. 2d 120 (Fla. 4th DCA 1993)…departure sentence. Appellant’s habitual offender classification did not constitute a valid reason for departure under the pre-1988 version of the habitual offender statute and the trial court did not provide any other reasons. See Forrest v. State, 589 So. 2d 974 (Fla. 4th DCA 1991). Upon resentencing, the trial court may depart from the sentencing guidelines. The record indicates the trial court believed it was imposing a habitual offender sentence pursuant to the 1989 version of the habitual offender statu…
Authorities Cited (16 total)
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)
- State v. Brown, 530 So. 2d 51 (Fla. 1988)
- Winters v. State, 522 So. 2d 816 (Fla. 1988)
- Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)
- Bertram King v. State, 580 So. 2d 169 (Fla. 4th DCA 1991)
- Bohannon v. State, 546 So. 2d 1081 (Fla. 3d DCA 1989)
- Petty v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979)