WILLIAM L. RUSSELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Russell was convicted and sentenced as a habitual offender but received a guidelines sentence rather than an enhanced sentence. The court affirms the conviction and sentence but remands for clarification regarding Russell's eligibility for gain time and modification of the judgment and sentence document to properly reflect his habitual offender designation while indicating he was not sentenced to an extended term.
A trial court may designate a defendant as a habitual offender and elect to sentence him to a guidelines sentence. The judgment and sentence document must clearly reflect both the habitual offender adjudication and that no extended term was imposed. When the trial court does not impose an enhanced sentence, it shall mark out the language indicating an extended term was imposed. A separate order should be entered clarifying eligibility for gain time.
[1] A trial court must designate a defendant a habitual offender if the state establishes the predicate requirements of the habitual offender statute.
[2] A trial court may elect to sentence a habitual offender to a guidelines sentence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“King v. State, 597 So.2d 309 (Fla. 2d DCA 1992) (en banc), review denied, 602 So.2d 942 (Fla.1992) held that the trial court is required to designate a defendant a habitual offender as a ministerial act if the state establishes the predicate requirements set forth in the habitual offender statute. King further held that the trial court could elect to sentence a habitual offender to a guidelines sentence.”
Establishes that trial courts must designate habitual offenders but have discretion to impose guidelines sentences rather than enhanced sentences
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Join FLexlaw to unlock all legal intelligenceRussell was designated a habitual offender by the trial court but was sentenced to a guidelines sentence rather than an extended sentence. The trial c…
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PARKER, Judge.
We affirm Russell’s conviction and the sentence imposed thereon. In our review of the record, however, we find it necessary to remand this case to the trial court for entry of an order which permits Russell, who was designated by the trial court to be a habitual offender but was sentenced to a guidelines sentence, to receive the appropriate gain time1 while serving his sentence and for modification of the written judgment and sentence.
King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992) (en banc), review denied, 602 So. 2d 942 (Fla.1992) held that the trial court is required to designate a defendant a habitual offender as a ministerial act if the state establishes the predicate requirements set forth in the habitual offender statute. King further held that the trial court could elect to sentence a habitual offender to a guidelines sentence. King, 597 So. 2d at 314-15. We recognize that the Department of Corrections (DOC) may have problems ascertaining when to award gain time to some defendants because the uniform judgment and sentence form, which the supreme court promulgated in Florida Rule of Criminal Procedure 3.986, does not provide for this option.
It appears logical that a defendant’s adjudication as a habitual offender should appear under the judgment portion of the judgment and sentence document; however, there is no area under the judgment portion for such an entry. The trial court, therefore, should enter on the judgment that the defendant is adjudged a habitual offender in accordance with the provisions of section 775.084, Florida Statutes.
Under the sentence portion of the document, the following language appears:
SPECIAL PROVISIONS
By appropriate notation, the following provisions apply to the sentence imposed in this section:
Habitual Offender The Defendant is adjudged a habitual offender and has been sentenced to an extended term in this sentence in accordance with the provisions of F.S. 775.084(4)(a). The requisite findings by the court are set forth in a separate order or stated on the record in open court.
When the trial court elects not to impose an enhanced sentence but instead wants the defendant to serve a guidelines sentence, which would permit the defendant to be eligible for gain time while in prison, the trial court shall “x out” the words “and has been sentenced to an extended term in this sentence in accordance with the provisions of F.S. 775.084(4)(a).”
Normally these two entries by the trial court to the judgment and sentence document would indicate clearly to the DOC when to credit habitual offenders with gain time; however, in an abundance of caution, we require a separate order in this case because DOC already has received two judgments and sentences in this case. We remand to the trial court for entry of a separate order regarding Russell’s eligibility for gain time and for modification of the judgment and sentence consistent with this opinion. The defendant need not be present.
LEHAN, C.J., and PATTERSON, J., concur. . Section 944.275, Florida Statutes (1989) provides for the award of gain time to prisoners to add incentives for good behavior. Section 775.-084(4)(e), Florida Statutes (Supp.1988) limits granting gain time to prisoners sentenced to an enhanced sentence under the habitual offender statute.
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Citator
Cited By
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Nesmith v. State, 623 So. 2d 1250 (Fla. 2d DCA 1993)…nt and the entry of an order stating that although the appellant was classified as a habitual offender, he did not receive an enhanced sentence under the habitual offender statute and is therefore eligible to receive gain time. See Russell v. State, 605 So. 2d 1342 (Fla. 2d DCA 1992). FRANK, C.J., and DANAHY, J., concur.…
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Russell v. State, 627 So. 2d 576 (Fla. 2d DCA 1993)…who was designated by the trial court to be a habitual offender but was sentenced to a guidelines sentence, to receive the appropriate gain time while serving his sentence and for modification of the written judgment and sentence.” Russell v. State, 605 So. 2d 1342 (Fla. 2d DCA 1992). On remand, the lower court entered an order stating that the issue was “whether [the trial judge] intended that the Defendant receive the gain time he would not normally receive as a habitual offender” and determining that the co…
Authorities Cited
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)