TRACY BERNARD WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court retains discretion to not sentence a defendant as a habitual offender, even if they meet the criteria, and cannot impose a harsher sentence after imposing a legal initial sentence due to double jeopardy concerns.
[1] A trial court retains discretion to sentence a defendant as a habitual offender, even if the defendant meets the statutory criteria.
[2] A trial court may choose not to sentence a defendant as a habitual offender by imposing a sentence without regard to the habitual offender statute.
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Join FLexlaw to unlock all legal intelligenceWright was initially sentenced to twelve years for arson. The state later moved to correct the sentence, arguing habitual offender status was mandator…
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PARKER, Judge.
Tracy Wright appeals his habitual offender sentence, alleging that his constitutional right against double jeopardy has been violated. We agree and direct the trial court to reinstate its original sentence.
The state charged Wright with arson. The state filed a notice of intent to seek enhancement as a habitual violent felony offender. Following a jury verdict of guilty, the state prepared a sentencing guidelines scoresheet which showed a permitted range of seven to seventeen years. The trial court decided not to treat Wright as a habitual offender and imposed a sentence of twelve years which was consecutive to Wright’s other sentences.
Subsequently, the state filed a motion to correct an illegal sentence and, relying upon State v. Allen, 573 So. 2d 170 (Fla. 2d DCA 1991), argued that habitualization was mandatory in every case where the defendant met the statutory criteria. The trial court agreed with the state’s interpretation of Allen, vacated Wright’s original sentence, and ordered a presentence investigation. The new guidelines scoresheet reflected a permitted range of twenty-seven years to life. The trial court orally adjudged Wright to be a habitual violent felony offender1 and sentenced Wright to life.
The issue in this appeal is whether Wright’s first sentence was a legal sentence. If it was, double jeopardy prevents the trial court from imposing a harsher sentence at a subsequent hearing. See Williams v. State, 553 So. 2d 729 (Fla. 2d DCA 1989); Daniels v. State, 513 So. 2d 244 (Fla. 2d DCA 1987).
Allen held that if a defendant is adjudged to be a habitual offender, then the trial court must impose the sentence set forth in the habitual offender statute. This court, however, receded from Allen in King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992) (en banc). King concluded that if the defendant’s prior record qualified the defendant as a habitual offender, the trial court must, as a ministerial function, declare the defendant to be a habitual offender. As to sentencing, King stated:
We, therefore, conclude that a trial judge retains the discretion to exercise leniency in regard to habitual felony offenders in two ways. First, using subsection 775.084(4)(c), the trial judge may simply decide not to sentence the defendant as an habitual felony offender. Second, having determined to sentence the defendant as an habitual felony offender, the trial judge has the discretion to sentence ... an habitual violent felony offender to any term of years not less than the minimum mandatory nor more than the maximum sentence provided in subsections 775.084(4)(b)(l); (2) and (3).
King, 597 So. 2d at 314-15 (emphasis in original) (footnotes added).
Applying King to this situation, the trial court was required to declare Wright a habitual violent felony offender because it was conceded that Wright met the statutory criteria. Then the trial court had the discretion of whether to impose a habitual violent felony offender sentence. It is clear from the trial court’s statements at the original sentencing hearing that it did not desire to sentence Wright as a habitual violent felony offender; therefore, the trial court could sentence Wright pursuant to subsection 775.084(4)(c), Florida Statutes (1989). Under this alternative, the trial court was required to impose a sentence in compliance with the sentencing guidelines or departure rules. See King, 597 So. 2d at 315-16. The trial court’s original sentence of twelve years was within the permitted sentencing range and, thus, was not illegal. The trial court, therefore, erred in vacating the legal sentence and then imposing a harsher sentence. See Williams.
We reverse and remand to the trial court to vacate Wright’s sentence of life with directions to declare Wright a habitual violent felony offender, to show this designation on the judgment and sentence, and to sentence him to the initial sentence of twelve years’ imprisonment.
Reversed and remanded with directions.
CAMPBELL, A.C.J., and McDONALD, RANDALL G., Associate Judge, concur. . We note that the trial judge did not check the habitual offender box on the judgment and sentence.
2. This subsection provides:
If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is a habitual felony offender or a habitual violent felony offender, the court shall make that determination as provided in subsection (3).
§ 775.084(4)(c), Fla.Stat. (1989).
3. These subsections provide:
(b) 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.
2. In the case of a felony of the second degree, for a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years.
3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years.
§ 775.084(4)(b)(l)-(3), Fla.Stat. (1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)…lant as a habitual violent felony offender, we believe Burdick affords greater leeway in sentencing than was either suggested by the state or understood by the trial court. See Ellis v. State, 608 So. 2d 514, 515 (Fla. 5th DCA1992); Wright v. State, 599 So. 2d 179 (Fla. 2d DCA1992). The state correctly points out that the. question certified in Burdick was expressly limited to whether the maximum sentence of life for a non-violent felon is mandatory or permissive. It does not necessarily follow from Burdick…
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King v. State, 648 So. 2d 183 (Fla. 1st DCA 1994)…approved, 545 So. 2d 851 (Fla.1989) (double jeopardy was violated by trial court’s resentencing of defendant on remand as to count that was unaffected by prior appeal). Ruffin v. State, 589 So. 2d 403, 404 (Fla. 5th DCA 1991); see Wright v. State, 599 So. 2d 179 (Fla. 2d DCA 1992) (holding habitual offender sentence could not be imposed once service of guidelines sentence had begun); Williams v. State, 553 So. 2d 729 (Fla. 2d DCA 1989); Daniels v. State, 513 So. 2d 244 (Fla. 2d DCA 1987). Neither the adopt…1 / 2
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State v. Swider, 799 So. 2d 388 (Fla. 4th DCA 2001)…ty, and a defendant may be re-sentenced on remand after already beginning to serve a sentence). A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant’s double jeopardy rights. See Wright v. State, 599 So. 2d 179, 180 (Fla. 2d DCA 1992). In the case at bar, the Defendants’ sentences were illegal. See Swidersky I, at 562. Under the reasoning of DiFrancesco and its progeny, it is well accepted that a defendant may be re-sentenced, even to a harsher term, wher…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- State v. Allen, 573 So. 2d 170 (Fla. 2d DCA 1991)
- Haag v. State, 513 So. 2d 244 (Fla. 4th DCA 1987)
- Williams v. State, 553 So. 2d 729 (Fla. 2d DCA 1989)