HERBERT DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herbert Davis challenges his resentencing on drug delivery charges committed near a school. The appellate court reverses and remands again because the trial judge on remand failed to properly reconsider the sentences in light of controlling precedent establishing that habitual offender sentencing is permissive rather than mandatory.
The court reverses the resentencing and remands again because the trial court erred by focusing on what the original judge intended rather than independently reconsidering the sentences under the new legal framework established by Burdick and King. The trial court must reconsider the sentences in light of the permissive nature of habitual offender enhancements and the Supreme Court's decision in Hale v. State.
[1] A trial court errs when resentencing a defendant if it fails to reconsider the sentence in light of subsequent controlling legal decisions.
[2] Sentencing under the habitual offender act is permissive, not mandatory.
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Join FLexlaw to unlock all legal intelligence“sentencing under the habitual offender act was permissive, not mandatory, and that a habitual felony offender may be sentenced to any term of years up to the maximum enhancement allowed”
Establishes the key legal change from Burdick and King that the trial court must apply on remand
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Join FLexlaw to unlock all legal intelligenceDavis was convicted of delivery of cocaine within 1000 feet of a school and possession of a controlled substance with intent to sell within 1000 feet …
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PER CURIAM.
The appellant, Herbert Davis, challenges the trial court’s judgment and sentence. We find that the trial court erred in resentencing the appellant and, accordingly, reverse and remand for resentencing.
The appellant was charged with and convicted of one count of delivery of cocaine with intent to sell within 1000 feet of a school and one count of possession of a controlled substance with intent to sell, purchase, manufacture, or deliver within 1000 feet of a school. § 893.13(l)(e)l., Fla.Stat. (1989). The appellant was sentenced as a habitual felony offender to two consecutive life sentences. The appellant challenged the proportionality of the sentences to the subject crimes in Davis v. State, 599 So. 2d 239 (Fla. 2d DCA 1992), and this court reversed appellant’s sentences and remanded for resentencing in accordance with Burdick v. State, 594 So. 2d 267 (Fla.1992), and King v. State, 597 So. 2d 309 (Fla. 2d DCA), rev. denied, 602 So. 2d 942 (Fla.1992). On remand, the trial court again sentenced the appellant to two consecutive life sentences and the appellant filed a timely notice of appeal challenging his resentencing.
At the time of the appellant’s original sentencing, the enhanced penalty under the habitual offender act was deemed mandatory. However, subsequent to the appellant’s original sentencing, Burdick and King were decided and held that sentencing under the habitual offender act was permissive, not mandatory, and that a habitual felony offender may be sentenced to any term of years up to the maximum enhancement allowed by subsections 775.084(4)(a)(l), (2), and (3).
In the instant case, this court remanded for resentencing because it did not know whether the trial court would have imposed more lenient sentences if it had the benefit of the Burdick and King decisions. Davis, 599 So. 2d at 240. On remand, a different trial judge than the trial judge who imposed the original sentence resentenced the appellant to two consecutive life sentences and found that it was not the sentence he would have imposed but it was the sentence that the original trial judge had intended. The second trial judge did not indicate whether he believed he could decline to impose two consecutive life sentences.
This court did not remand for the second trial judge to make a determination as to whether the first trial judge intended to impose two consecutive life sentences. Instead, this court remanded for the trial judge to reconsider the appellant’s sentences in light of Burdick and King. See Tucker v. State, 595 So. 2d 956 (Fla.1992). See also Williams v. State, 596 So. 2d 791 (Fla. 4th DCA 1992). We, accordingly, reverse the appellant’s two consecutive life sentences and again remand for the trial court to reconsider the appellant’s sentences in light of Burdick and King. At resentencing, the trial court must of course consider the supreme court’s decision in Hale v. State, 630 So. 2d 521 (Fla.1993).
Reversed and remanded.
SCHOONOVER, A.C.J., and ALTENBERND and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- Taylor v. State, 595 So. 2d 956 (Fla. 1992)
- Williams v. State, 596 So. 2d 791 (Fla. 4th DCA 1992)
- Davis v. State, 599 So. 2d 239 (Fla. 2d DCA 1992)