MELVIN OGLESBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Melvin Oglesby appeals his habitual offender sentence, arguing the trial court (rather than the State) provided notice of intent to habitualize and that the notice was not provided before his plea. The Fifth District affirmed, holding that the trial court may properly file such notice and that Oglesby received adequate notice and awareness of habitualization consequences prior to his plea through his signed plea agreement.
The trial court properly filed the notice of habitual offender sentencing, and Oglesby received the required protections of Ashley prior to entering his plea through his signed plea agreement, which specifically acknowledged the possibility and consequences of habitualization. The judgment of conviction and sentence is affirmed.
[1] A trial judge may properly file the notice for habitual offender sentencing.
[2] For a defendant to be habitualized following a guilty or nolo plea, the defendant must be given written notice of intent to habitualize prior to the acceptance of the ple…
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Join FLexlaw to unlock all legal intelligence“in order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.”
Establishes the Ashley standard for required protections before habitualization following a guilty plea
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMelvin Oglesby entered a guilty or nolo plea and was subsequently sentenced as a habitual offender. His signed written plea agreement explicitly ackno…
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[*586] GOSHORN, Judge.
Melvin Oglesby appeals from the judgment of the trial court sentencing him as a habitual offender. On appeal, he contends that it was error for the trial court, rather than the State, to provide him with the notice of intent to habitualize. He further argues that his sentence must be reversed because the notice was not provided prior to the entry of his plea. We affirm.
As to Oglesby’s first contention, this court has previously held that it is proper for the trial judge to file the notice for habitual offender sentencing. Toliver v. State, 605 So. 2d 477 (Fla. 5th DCA 1992), review denied, 618 So. 2d 212 (Fla.1993). As to Ogles-by’s second contention, we acknowledge that approximately one year after Oglesby tendered his plea, but while this appeal was pending, the Florida Supreme Court decided Ashley v. State, 614 So. 2d 486 (Fla.1993). In Ashley, the court held that in order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habituali-zation.
Id. at 490 (footnote omitted). However, unlike the plea agreement in Ashley which expressly provided that Ashley would be sentenced under the guidelines, Oglesby, by his signed written plea agreement, specifically acknowledged that
4. I have read the information or indictment in this ease and I understand the charge(s) to which I enter my plea(s). My attorney has explained to me the total maximum penalties for the charge(s) and as a result I understand the following:
* * * * *
c. That should I be determined by the Judge to be a Violent Habitual Felony Offender, and should the Judge sentence me as such, I could receive up to a maximum sentence of 30 years imprisonment and that as to any habitual offender sentence I would not be entitled to receive any basic gain time.
d. That should I be determined by the Judge to be a Non-Violent Habitual Felony Offender, and should the Judge sentence me as such, I could receive up to a maximum sentence of 30 years imprisonment and a mandatory minimum of 0 years imprisonment and that as to any habitual offender sentence I would not be entitled to receive any basic gain time. [Emphasis added].
The plea agreement further set forth that Oglesby had read the written plea, discussed it with his attorney, and that Oglesby fully understood the plea agreement. Oglesby made the same representations to the trial court in open court at the plea proceeding. We therefore find that the protections afforded by Ashley were provided to Oglesby prior to the entry of his plea and find that the “harmless error” analysis set forth by the supreme court in Massey v. State, 609 So. 2d 598 (Fla.1992) applies. To hold otherwise would elevate form over substance.
AFFIRMED.
PETERSON and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thompson v. State, 638 So. 2d 116 (Fla. 5th DCA 1994)…so justifies, the court may consider or the state may seek to habitualize the defendant. I believe the plea agreement in this case affords the defendant the essential protections required by Ashley. There is no need to recede from Oglesby v. State, 627 So. 2d 585 (Fla. 5th DCA 1998), review denied, 687 So. 2d 236 (Fla.1994) and it is bad policy to do so. I would affirm.…
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Brown v. State, 638 So. 2d 120 (Fla. 5th DCA 1994)…GOSHORN, Judge, dissenting. I respectfully dissent for the reasons set forth in my opinion in Oglesby v. State, 627 So. 2d 585 (Fla. 5th DCA 1993) review denied, No. 82,987, 637 So. 2d 236 (Fla. Mar. 11,1994) and my dissent in Thompson v. State, 638 Sol2d 116 (Fla. 5th DCA 1994).…1 / 2
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Massey v. State, 609 So. 2d 598 (Fla. 1992)
- Toliver v. State, 605 So. 2d 477 (Fla. 5th DCA 1992)