TERRANCE GARRISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terrance Garrison appealed his sentence as an habitual violent felony offender, arguing that the statute used to enhance his sentence was unconstitutional during the period when his crimes were committed. The court reversed his sentence and remanded for re-sentencing, finding that the constitutional defect identified in Johnson v. State applied to his case.
The court reversed Garrison's habitual violent felony offender sentence and remanded for re-sentencing. The constitutional defect established in Johnson v. State applies to Garrison's case, as his crimes fell within the period of unconstitutionality and he would not have qualified for habitualization under the pre-amendment statute. Garrison was not precluded from raising the constitutional issue despite not raising it before the trial court.
[1] A defendant may be sentenced as a habitual violent felony offender based on prior convictions that occurred during a period when the relevant statute was unconstitutional…
[2] A defendant is not precluded from raising the unconstitutionality of a sentencing statute on appeal, even if the issue was not raised before the trial court.
Previewing 2 of 3 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“Garrison argues that he could not properly be sentenced as such based on the unconstitutionality of section 775.084, Florida Statutes, as amended by Ch. 89-280, Laws of Florida.”
Sets forth Garrison's central argument that the statute under which he was sentenced was unconstitutional
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Join FLexlaw to unlock all legal intelligenceGarrison was charged in July 1990 with armed robbery and aggravated assault that occurred in April 1990. He was convicted by jury and initially senten…
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PER CURIAM.
Terrance Garrison has appealed from sentencing as an habitual violent felony offender. We reverse, and remand for re-sentencing.
In July 1990, Garrison was charged with armed robbery and aggravated assault, which offenses occurred in April 1990. He was tried and convicted by jury, and sentenced as an habitual violent felony offender. This court reversed Garrison’s sentence based on inconsistencies in the record as to the exact nature of his sentence, Garrison v. State, 584 So. 2d 642 (Fla. 1st DCA 1991), and he was re-sentenced in February 1992. At re-sentencing, the state again sought habitual violent felony offender classification, relying as before on two prior convictions of aggravated battery, and possession of cocaine. Garrison was again sentenced as an habitual violent felony offender. Garrison argues that he could not properly be sentenced as such based on the unconstitutionality of section 775.084, Florida Statutes, as amended by Ch. 89-280, Laws of Florida. See Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991), review pending Case No. 79,150. He points out that, as in Johnson, his crimes were committed between the October 1, 1989 effective date of Ch. 89-280, and its re-enactment on May 1, 1991, and further that he would not have been habitualized under the pre-amendment statute, i.e., aggravated battery was not a qualifying offense under that version.
The state does not argue that Garrison’s crimes were not committed during the period of unconstitutionality established in Johnson, nor does it contest Garrison’s argument that Johnson entitles him to a reversal of his habitual violent felony offender sentence. The state responds only that Garrison is precluded from raising the issue because he did not raise it before the trial court. This argument is without merit. See Claybourne v. State, 600 So. 2d 516 (Fla. 1st DCA 1992). Therefore, the habitual violent felony offender sentence imposed herein is reversed, Johnson, and the case remanded for resentencing.
JOANOS, C.J., and BOOTH and WIGGINTON, JJ., concur. ON MOTION FOR CERTIFICATION
PER CURIAM.
Appellee’s motion for certification is granted. We hereby certify the same question certified in Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991), jurisdiction accepted S.Ct. Case Nos. 79,150 and 79,204 (consolidated).
JOANOS, C.J., and BOOTH and WIGGINTON, JJ., concur.
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Garrison v. State, 654 So. 2d 1176 (Fla. 1st DCA 1994)…ersed, and the case was remanded for resentencing. Garrison v. State, 584 So. 2d 642 (Fla. 1st DCA 1991). On appeal from the initial resentencing, the sentences were again reversed and the case was again remanded for resentencing. Garrison v. State, 607 So. 2d 473 (Fla. 1st DCA 1992), aff’d sub nom. State v. Garrison, 616 So. 2d 993 (Fla.1993). The present appeal is from the second resentencing. At the second resentencing, Garrison received a three-year habitual felony offender sentence for aggravated assaul…
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State v. Garrison, 616 So. 2d 993 (Fla. 1993)…OVERTON, Justice. We have for review Garrison v. State, 607 So. 2d 473 (Fla. 1st DCA 1992), in which the district court addressed the same question we recently answered in State v. Johnson, 616 So. 2d 1 (Fla.1993).1 In accordance with our decision in Johnson, we approve the decision of the district court in the instant…
Authorities Cited
- Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)
- Claybourne v. State, 600 So. 2d 516 (Fla. 1st DCA 1992)
- Garrison v. State, 584 So. 2d 642 (Fla. 1st DCA 1991)