KELVIN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelvin Smith challenges his sentences in two criminal cases. The appellate court reverses both sentences: the first because the trial court imposed an impermissible four-cell guideline departure without articulating reasons, and the second because the trial court failed to make statutorily required findings before sentencing Smith as a habitual felony offender.
The court reversed both sentences. In case 90-34CF, a probation violation sentence can only increase one cell without stated reasons for departure, making the ten-year sentence unlawful. In case 91-55CF, the trial court's failure to make findings required by Section 775.084(l)(a)(3) and (4) regarding pardons and set-asides is reversible error regardless of the defendant's agreement or acknowledgment at sentencing.
[1] A sentence imposed after revocation of probation may be increased only one cell without a trial judge giving a reason for departure.
[2] A trial court's failure to make required findings for habitual felony offender sentencing is reversible error, even in the absence of objection.
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Join FLexlaw to unlock all legal intelligence“a sentence imposed after revocation of probation may be increased only one cell without a trial judge giving a reason for departure”
Establishes the statutory limitation on sentence increases in probation violation cases under Florida Rule of Criminal Procedure 3.701(d)(14)
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of sale of cocaine in case 90-34CF and robbery without a firearm in case 91-55CF. In 90-34CF, he violated probation and received a…
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ERVIN, Judge.
We reverse the sentences of appellant, Kelvin Smith, for two reasons. First, Smith contends, and the state concedes, that the trial court erred in case number 90-34CF by sentencing Smith to ten years in prison for two counts of sale of cocaine following a violation of probation, which constituted a four-cell bump up from his original recommended guideline prison sentence of three and one-half to four and one-half years. Florida Rule of Criminal Procedure 3.701(d)(14) provides that a sentence imposed after revocation of probation may be increased only one cell without a trial judge giving a reason for departure. Because the sentencing judge did not articulate a reason for departure, Smith’s sentence in case 90-34CF must be reversed and the case remanded for the judge to impose a sentence within the recommended or permitted range, or within the one-cell bump up.
In case number 91-55CF, the court sentenced Smith as a habitual felony offender to 15 years in prison for robbery without a firearm. The trial judge, however, failed to make the findings required by Section 775.084(l)(a)(3) and (4), Florida Statutes (1991), that he had not been pardoned, or that the prior convictions had not been set aside in a postconviction proceeding. A trial court’s failure to make such findings is reversible error, even in the absence of objection. Jones v. State, 606 So. 2d 709 (Fla. 1st DCA 1992) (en banc).
The state contends that Smith agreed to a habitual-offender sentence in his plea agreement in case number 91-55CF, or, in the alternative, that he waived his right to the fact-finding process by acknowledging at the sentencing hearing that he met the criteria for habitualization. On the contrary, Smith merely agreed in the plea agreement that the state attorney would recommend that he be sentenced as a habitual offender. Such an agreement cannot be considered either a stipulation or a waiver. See Harper v. State, 605 So. 2d 994 (Fla. 5th DCA 1992) (defendant’s acceptance of prosecutor’s recommendation of habitual offender sentencing was not a stipulation of habitual offender status nor waiver of fact-finding process). Moreover, at the habitualization hearing, defense counsel acknowledged only that the state had proved the existence of the requisite two prior felony convictions. He did not mention the findings required by section 775.084(l)(a)(3) and (4).
As we have done previously, we certify the following question to the Florida Supreme Court as one of great public importance:
DOES THE HOLDING IN EUTSEY V. STATE, 383 So. 2d 219 (FLA.1980), THAT THE STATE HAS NO BURDEN OF PROOF AS TO WHETHER THE CONVICTIONS NECESSARY FOR HABITUAL FELONY OFFENDER SENTENCING HAVE BEEN PARDONED OR SET ASIDE, IN THAT THEY ARE “AFFIRMATIVE DEFENSES AVAILABLE TO [A DEFENDANT],” EUTSEY AT 226, RELIEVE THE TRIAL COURT OF ITS STATUTORY OBLIGATION TO MAKE FINDINGS REGARDING THOSE FACTORS, IF THE DEFENDANT DOES NOT AFFIRMATIVELY RAISE, AS A DEFENSE, THAT THE QUALIFYING CONVICTIONS PROVIDED BY THE STATE HAVE BEEN PARDONED OR SET ASIDE?
WIGGINTON and ZEHMER, JJ., concur.
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Spriggs v. State, 615 So. 2d 828 (Fla. 4th DCA 1993)…or HFO sentence precludes post-conviction relief alleging failure to follow the statutory requirements); Likely v. State, 583 So. 2d 414 (Fla. 1st DCA 1991) (same); Caristi v. State, 578 So. 2d 769 (Fla. 1st DCA 1991) (same). But cf. Smith v. State, 608 So. 2d 567 (Fla. 1st DCA 1992) (plea arrangement in which defendant agreed that prosecutor would recommend HFO sentence is not a waiver of procedures required by section 775.084); Harper v. State, 605 So. 2d 994 (Fla. 5th DCA 1992) (same).3 The criminal justi…
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Nelson v. State, 650 So. 2d 1085 (Fla. 1st DCA 1995)…of Criminal Procedure 3.701(d)14, and no reasons were provided in support of the departure sentence. Therefore, we must re [*1086] verse the sentence and remand for re-sentencing. See Williams v. State, 594 So. 2d 273,275 (Fla.1992); Smith v. State, 608 So. 2d 567 (Fla. 1st DCA 1992). Since the record indicates the trial court was not aware that a departure sentence had been imposed, upon remand, the court may consider whether a departure sentence is appropriate in this case, and if so, to set forth valid rea…
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State v. Smith, 616 So. 2d 52 (Fla. 1993)…SHAW, Justice. We have for review Smith v. State, 608 So. 2d 567 (Fla. 1st DCA 1992), wherein the court certified a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We have since answered the question in State v. Rucker, 613 So. 2d 460 (Fla.1993). We quash Smith and remand…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- William v. Jones, 606 So. 2d 709 (Fla. 1st DCA 1992)
- Harper v. State, 605 So. 2d 994 (Fla. 5th DCA 1992)