STATE OF FLORIDA, APPELLANT/CROSS APPELLEE,
v.
CALVIN SMITH, APPELLEE/CROSS APPELLANT
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The State of Florida appealed a trial court's decision declining to sentence Calvin Smith as a habitual offender for burglary with battery, arguing the sentencing statutes permit such enhancement. The appellate court agreed with the State, reversed the burglary sentence, and remanded for resentencing as a habitual offender, while affirming Smith's other convictions.
The trial court erred in finding that the habitual offender statute does not permit sentencing as a habitual offender for burglary with battery. The court may apply the habitual offender statute to a felony of the first degree with a maximum penalty of life imprisonment.
[1] A trial court may consider the habitual offender statute in sentencing a defendant for a first-degree felony punishable by imprisonment for a term of years not exceeding…
[2] A conviction for burglary during which a battery was committed constitutes a first-degree felony punishable by imprisonment for a term of years not exceeding life.
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Join FLexlaw to unlock all legal intelligence“the trial court may consider the habitual offender statute in sentencing Smith for an offense classified as a felony of the first degree, punishable by imprisonment for a term of years not exceeding life”
Statement of the holding regarding the trial court's authority to apply habitual offender sentencing to first-degree felonies
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Join FLexlaw to unlock all legal intelligenceAfter a jury trial, Smith was convicted of burglary at which time a battery was committed, attempted sexual battery with slight force, and petit theft…
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PARKER, Judge.
The state appeals Calvin Smith’s sentence of his conviction for burglary at which time a battery was committed, arguing that the trial court erred in finding that the sentencing statutes do not permit Smith to be sentenced as a habitual offender for this crime. We agree and reverse Smith’s sentence for burglary, finding that the trial court may consider the habitual offender statute in sentencing Smith for an offense classified as a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. Smith cross appeals, presenting four issues for review. We find no merit to his arguments and affirm his convictions.
After a jury trial, the trial court adjudicated Smith guilty of the crimes of burglary at which time a battery was committed, attempted sexual battery with slight force, and petit theft. The state sought imposition of an enhanced penalty as a habitual offender under section 775.084, Florida Statutes (1989). The trial court sentenced Smith to ten years’ imprisonment as a habitual offender on the charge of attempted sexual battery and time served on the charge of petit theft. Neither the state nor Smith challenges the sentences imposed for the attempted sexual battery and petit theft convictions. The trial court sentenced Smith pursuant to the sentencing guidelines to nine years’ imprisonment followed by fifteen years’ probation on the burglary conviction, specifically finding that section 775.0841 does not allow the court to sentence a defendant as a habitual offender when he has been found guilty of burglary at which time a battery is committed because this crime constitutes a felony of the first degree punishable by imprisonment for a term of years not exceeding life imprisonment. See § 810.02(2)(a), Florida Statutes (1989).2 We conclude that this finding was error. See Burdick v. State, 594 So. 2d 267 (Fla.1992).
During the sentencing of Smith on the attempted sexual battery charge, the trial court declared that for the protection of the public, Smith should be habitualized. Based upon this declaration, the Florida Supreme Court’s recent decision of Burdick, and this court’s recent decision of King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992) (en banc), we reverse the sentence for burglary and remand the case to the trial court to find Smith a habitual offender and sentence him pursuant to King.
Affirmed in part, reversed in part, and remanded with directions.
DANAHY, A.C.J., and PATTERSON, J., concur. . Section 775.084(4)(a) provides:
The court, in conformity with the procedure established in subsection (3), shall sentence the habitual felony offender as follows:
1. In the case of a felony of the first degree, for life.
. Section 810.02(2)(a), Florida Statutes (1989), provides:
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.-084, if, in the course of committing the offense, the offender:
(a) Makes an assault or battery upon any person.
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Eblin v. State, 677 So. 2d 388 (Fla. 2d DCA 1996)…to such a sentence, the prosecutor told the court that he could not be sentenced as a habitual offender for a first degree felony punishable by life. This was an incorrect representation. Burdick v. State, 594 So. 2d 267 (Fla.1992); State v. Smith, 597 So. 2d 319 (Fla. 2d DCA 1992). The prosecutor agreed that Eblin could be sentenced under the guidelines. The state cannot claim error in a ruling it invited the court to make. State v. Glosson, 462 So. 2d 1082, 1084 (Fla.1985). On remand, the court shall resen…
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Smith v. State, 630 So. 2d 1136 (Fla. 2d DCA 1993)…PER CURIAM. Affirmed. See Harris v. State, 624 So. 2d 279 (Fla. 2d DCA 1993); State v. Smith, 597 So. 2d 319 (Fla. 2d DCA 1992). PARKER, A.C.J., BLUE, J., and LUTEN, CLAIRE K., Associate Judge, concur.…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)