JOHNNY L. MOORER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny L. Moorer appealed his conviction for possession of cocaine and the sentence imposed after a bench trial. The court affirmed the conviction but reversed the sentence, finding that the trial court improperly imposed a hybrid sentence treating Moorer as a habitual offender only during probation while sentencing him under the guidelines for his prison term, which violated the habitual offender statute.
The trial court's hybrid sentence was improper and violated the habitual offender statute. Once a determination is made that a defendant is a habitual offender, the court must either sentence him as a habitual offender or elect not to do so and impose a guidelines sentence; the court cannot impose both. The case is remanded for resentencing pursuant to the guidelines as agreed to by Moorer.
[1] A conviction for possession of cocaine will be affirmed if the state presents sufficient evidence to sustain the charge.
[2] A trial court errs when it imposes a hybrid sentence that is inconsistent with the habitual offender statute.
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Join FLexlaw to unlock all legal intelligence“The hybrid sentence imposed upon the appellant, i.e., incarceration without habitual offender status followed by probation as a habitual offender is not consistent with the habitual offender statute and, therefore, improper.”
Establishes that the trial court's sentencing approach violated the habitual offender statute by mixing guidelines sentencing for prison with habitual offender treatment for probation
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Join FLexlaw to unlock all legal intelligenceMoorer waived his right to a jury trial in exchange for an agreement that he would receive no more than three and one-half years in prison and could b…
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SCHOONOVER, Judge.
The appellant, Johnny L. Moorer, challenges the judgment and sentence imposed upon him after he was found guilty, as charged, of possession of cocaine. We find no merit in the appellant’s contention that the state did not present sufficient evidence to sustain the conviction for possession of cocaine. We, accordingly, affirm his conviction without further discussion. We find, however, that the trial court erred in sentencing the appellant and, therefore, re verse and remand for resentencing within the guidelines.
The appellant waived his right to a jury-trial in exchange for an agreement that he would receive a sentence of no more than three and one-half years in prison. The agreement also provided that he could be treated as a habitual offender during any term of probation he was required to serve. At the conclusion of the nonjury trial, the trial judge found the appellant guilty as charged. The appellant waived a presen-tence investigation, and the court, after receiving evidence concerning unpardoned prior convictions, held that he was a habitual offender and sentenced him to serve two years in state prison followed by three years of probation. The court also stated that the appellant would be treated as a habitual offender while he was on probation. The written judgment and sentence form did not find the appellant was a habitual offender, but the order placing him on probation contained a provision which specified that he would be treated as a habitual offender while on probation. This timely appeal followed.
The hybrid sentence imposed upon the appellant, i.e., incarceration without habitual offender status followed by probation as a habitual offender is not consistent with the habitual offender statute and, therefore, improper. § 775.084(4)(e), Fla. Stat. (1989). Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992).
The trial court properly found that the appellant was a habitual offender. King v. State, 597 So. 2d 309 (Fla. 2d DCA), rev. denied, 602 So. 2d 942 (Fla.1992). Once this determination was made, the court had two alternatives in sentencing the appellant. The court could have elected not to sentence the appellant as a habitual offender and imposed a guidelines sentence, or he could have sentenced him as a habitual offender. § 775.084(4)(a)(b)(c), Fla.Stat. (1989). See Burdick v. State, 594 So. 2d 267 (Fla.1992). He could not do both. Burrell.
The appellant agreed to waive his right to a jury trial in exchange for being allowed to serve any prison sentence imposed upon him in such a manner that he would be eligible for all gain time afforded those who are sentenced under the guidelines. He kept his agreement and must now receive what he bargained for. We, accordingly, reverse and remand for resentencing pursuant to the guidelines. § 775.-084(4)(c).
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., and THREADGILL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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King v. State, 681 So. 2d 1136 (Fla. 1996)…1, 31 (Fla.1993). . See Thompson v. State, 618 So. 2d 335, 336 (Fla. 2d DCA 1993) (finding split sentence of incarceration under the sentencing guidelines followed by probation as habitual offender to be “illegal hybrid sentence”); Moorer v. State, 614 So. 2d 643, 644 (Fla. 2d DCA 1993) (finding similar split sentence to be "improper"); Burrell v. State, 610 So. 2d 594, 596 (Fla. 2d DCA 1992) (finding sentencing part of negotiated plea to be voidable because similar split sentence was "illegal sentence"). .…
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Davis v. State, 623 So. 2d 547 (Fla. 2d DCA 1993)…t could have sentenced him as a habitual offender. The court could not, however, do both; it could not impose a hybrid split sentence, i.e. incarceration without habitual offender status followed by probation as a habitual offender. Moorer v. State, 614 So. 2d 643 (Fla. 2d DCA 1993); Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992). The appellant, pursuant to a negotiated plea, served the imprisonment portion of his sentence under the guidelines. Accordingly, based on the facts of this particular case he c…
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King v. State, 648 So. 2d 183 (Fla. 1st DCA 1994)…der the guidelines, have also been reversed. See Thompson v. State, 618 So. 2d 335, 336 (Fla. 2nd DCA 1993) (rejecting imprisonment under the guidelines coupled with probation as a habitual offender as an “illegal hybrid sentence”); Moorer v. State, 614 So. 2d 643 (Fla. 2d DCA 1993); Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992). In a somewhat different context (so-called reverse split sentences), our supreme court “has made it clear that sentencing alternatives should not be used to thwart the guideli…
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
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- Rolland Allen Burrell v. State, 610 So. 2d 594 (Fla. 2d DCA 1992)