DAVID FRYE, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1997-02-26

No. 96-1504

Before JORGENSON, COPE and FLETCHER, JJ.

690 So. 2d 629 Florida District Court of Appeal, Third District (1997) Positive Treatment

Cited by 5 cases

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Holding

The court held that the trial judge mistakenly believed mandatory minimum sentences were required, and that life felonies are not subject to habitual offender enhancement. The case is remanded for resentencing.

Facts & Procedural History

Defendant was convicted of armed robbery and burglary. The trial court sentenced him with mandatory minimums, believing they were required. The senten…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Life Felony Enhancement Sentencing Discretion Mandatory Minimum Sentence

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Opinion of the Court

PER CURIAM.

Defendant David Frye was convicted by a jury on three counts of armed robbery and one count of armed burglary with assault or battery. The trial court sentenced Frye to twenty-five years in state prison, with a fifteen-year mandatory minimum term as a habitual violent offender and a three-year mandatory minimum for possession of a firearm on each count to run concurrently. The record reflects that the trial judge was under the mistaken impression that, when sentencing a defendant as an habitual offender, he had no discretion and was required to impose the mandatory minimum term. As the imposition of mandatory minimum terms is permissive, not mandatory,1 we remand the case for resentencing. Zequeira v. State, 671 So. 2d 279 (Fla. 3d DCA 1996). On remand, the trial judge is free to exercise the sentencing discretion permitted by the habitual violent offender statute.

We also note concerning resentencing that, as to the conviction for burglary with assault or battery (a life felony), at the time of the offense (August 25, 1994), life felonies were not subject to enhancement under the habitual violent offender statute. Section 775.084, Florida Statutes (1993); Parnell v. State, 627 So. 2d 1246 (Fla. 3d DCA 1993), rev. denied, 637 So. 2d 236 (Fla.1994). As to the conviction for burglary with assault or battery the sentence is vacated and remanded for imposition of a guideline sentence.

Remanded for resentencing.

. We acknowledge that other district courts have decided to the contrary. White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993); Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992); Martin v. State, 608 So. 2d 571 (Fla. 5th DCA 1992). The Fourth District Court has concluded, as we have, that mandatory minimum sentences under the habitual offender statute are discretionary. Green v. State, 615 So. 2d 823 (Fla. 4th DCA 1993).

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

State v. Frye, 699 So. 2d 1010 (Fla. 1997)

…PER CURIAM. We have for review Frye v. State, 690 So. 2d 629 (Fla. 3d DCA 1997), which expressly and directly conflicts with White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993); Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992); and Martin v. State, 608 So. 2d 571 (Fla. 5th DCA 1992). We have jurisdiction. Art.…
Brinson v. State, 697 So. 2d 976 (Fla. 3d DCA 1997)

…ntenc-ing. The trial judge sentenced defendant under the mistaken belief that when sentencing defendant as a habitual offender, he was required to impose a mandatory minimum term. The imposition of a mandatory minimum is permissive. Frye v. State, 690 So. 2d 629 (Fla. 3d DCA 1997). As in Frye, the trial court in this case is, of course, free to exercise its discretion on remand to impose a mandatory minimum. Affirmed in part; vacated in part; remanded.…
Ortiz v. State (Fla. 3d DCA 2025)

…Ortiz contends—correctly—that sentencing under both the habitual felony offender statute and the habitual violent felony offender statute is permissive, not mandatory. See State v. Hudson, 698 So. 2d 831, 833 (Fla. 1997); see also Frye v. State, 690 So. 2d 629, 629 (Fla. 3d DCA 1997), approved 699 So. 2d 1010 (Fla. 1997) (reversing habitual violent felony offender sentence where “the trial judge was under the mistaken impression that, when sentencing a defendant as an habitual offender, he had no disc…

Authorities Cited

White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)
Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992)
Green v. State, 615 So. 2d 823 (Fla. 4th DCA 1993)
Martin v. State, 608 So. 2d 571 (Fla. 5th DCA 1992)
Parnell v. State, 627 So. 2d 1246 (Fla. 3d DCA 1993)
Zequeira v. State, 671 So. 2d 279 (Fla. 3d DCA 1996)
Meadows v. State, 671 So. 2d 279 (Fla. 3d DCA 1996)

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