RICHARD EVERSOLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eversole appealed his sentencing following a no contest plea to sexual battery. The court reversed his 15-year habitual felony offender sentence, finding error because the state failed to file proper notice of intent to seek habitual offender status and the trial court did not advise Eversole of its sentencing intent before accepting his plea.
The sentence was erroneous. The trial court must either sentence within guidelines or as a habitual offender, but only after advising the defendant of its intent to impose an habitual offender sentence and permitting him to either accept the greater sentence or withdraw his plea and proceed to trial.
[1] A trial court cannot impose an habitual offender sentence when the state has not provided notice of its intent to seek such a sentence, absent a plea agreement explicitly…
[2] A plea agreement that merely states an habitual offender hearing 'may' be set does not constitute sufficient notice for the imposition of an habitual offender sentence.
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Join FLexlaw to unlock all legal intelligence“The trial court may sentence as it deems appropriate consistent with the sentencing guidelines, or it may impose an habitual felony offender sentence, so long as it gives Eversole an opportunity to withdraw his plea and proceed to trial.”
Establishes the remedy on remand and the requirement to provide notice and withdrawal opportunity
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Join FLexlaw to unlock all legal intelligenceEversole pled no contest to sexual battery and violation of probation. The state did not file notice seeking habitual offender sentencing. After accep…
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W. SHARP, Judge.
Eversole appeals from his sentence after he pled no contest to one count of sexual battery and violation of probation on an unrelated charge. The state did not file notice it would seek imposition of an habitual offender sentence pursuant to section 775.084, Florida Statutes (1993). After the trial judge accepted Eversole’s plea, the judge served notice he would conduct a hearing to determine whether or not to classify Ever-sole as an habitual offender. The plea agreement only indicated that this “may” be set and a hearing conducted to determine if he should be sentenced as an habitual offender. Following the hearing, Eversole was given a 15 year habitual felony offender sentence, followed by 10 years on probation.1
In view of this court’s decisions in Santoro v. State, 644 So. 2d 585 (Fla. 5th DCA 1994) and Thompson v. State, 638 So. 2d 116 (Fla. 5th DCA 1994), rev. granted, 649 So. 2d 234 (Fla.1994), we conclude error occurred in sentencing Eversole in this case. Accordingly, we reverse the sentence and remand for resentencing. The trial court may sentence as it deems appropriate consistent with the sentencing guidelines, or it may impose an habitual felony offender sentence, so long as it gives Eversole an opportunity to withdraw his plea and proceed to trial. At resentencing, the court should either sentence Eversole within the guidelines (including a departure sentence) or as an habitual offender if the court believes a greater sentence is justified, so long as it advises him of its intent to impose an habitual offender sentence, and permit him to either accept the greater sentence or withdraw his plea and proceed to trial. In addition we note the imposition of a $120.00 fee to First Step as a special condition of probation was erroneous and should not be imposed on remand.
Sentence VACATED; REMANDED FOR RESENTENCING.
HARRIS, C.J., concurs.
GRIFFIN, J., dissents with opinion.
. Although this sentence falls within both the permitted (7-17 years) and recommended (9-12 years) guideline ranges, habitualization also re-suits in the ineligibility for basic gain time and the central release of prisoners program. § 775.084(4)(e).
GRIFFIN, Judge,
dissenting.
I agree that Santoro controls and, as I did in Santoro, I dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Eversole, 664 So. 2d 242 (Fla. 1995)…SHAW, Justice. We have for review Eversole v. State, 651 So. 2d 240 (Fla. 5th DCA 1995), based on conflict with Ashley v. State, 614 So. 2d 486 (Fla.1993). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We recently addressed this issue in State v. Blackwell, 20 Fla.L.Weekly S354, 661 So. 2d 282 (Fla.1995). We…
Authorities Cited
- Thompson v. State, 638 So. 2d 116 (Fla. 5th DCA 1994)
- Santoro v. State, 644 So. 2d 585 (Fla. 5th DCA 1994)