PATRICK MICHAEL KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelly challenges his 30-year habitual violent felony offender sentence and 15-year minimum mandatory term for robbery with a deadly weapon. The court reverses, holding that trial courts have discretion to impose or decline minimum mandatory provisions under the habitual violent felony offender statute, and that trial courts must consider challenges to the accuracy of presentence investigation reports.
Yes on both points. Trial courts have discretion under the habitual violent felony offender statute to determine whether to impose a minimum mandatory term. Additionally, trial courts must consider challenges to the accuracy of presentence investigation reports and guidelines scoresheets before imposing sentence.
[1] A trial court's discretion in sentencing under the habitual violent felony offender statute extends to the determination of whether to impose a minimum mandatory term.
[2] A trial court errs by refusing to consider a challenge to the accuracy of a presentence investigation report and guidelines score sheet.
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Join FLexlaw to unlock all legal intelligence“A trial court's discretion in sentencing under the habitual violent felony offender statute extends to the determination of whether to impose a minimum mandatory term.”
Establishes that trial courts have discretionary authority over minimum mandatory provisions, contrary to the trial court's conclusion that it was required by statute to impose them.
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Join FLexlaw to unlock all legal intelligencePatrick Michael Kelly was convicted of robbery with a deadly weapon and aggravated assault. He was initially sentenced as a habitual violent felony of…
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GREEN, Judge.
The appellant, Patrick Michael Kelly, challenges the thirty-year habitual violent felony offender sentence and the fifteen-year minimum mandatory term for robbery with a deadly weapon. We reverse the habitual violent felony offender sentence and the minimum mandatory provision.
This is the second appeal in this case. After the appellant was convicted and sentenced for robbery with a deadly weapon and aggravated assault, he appealed, and this court reversed the habitual violent felony offender sentence for the robbery with a deadly weapon conviction. See Kelly v. State, 629 So. 2d 325 (Fla. 2d DCA 1993). The case was remanded, and the trial court resentenced the appellant.
In the instant appeal, the appellant contends that the trial court erred in resentencing him on the robbery with a weapon charge by imposing the fifteen-year minimum mandatory provision. We agree with the appellant’s contention. At the resentencing hearing, defense counsel asserted that the trial court had discretion in deciding whether to impose a minimum mandatory provision. The trial court indicated that it had no discretion and was required by statute to impose the minimum mandatory term. The trial court’s conclusion was erroneous. A trial court’s discretion in sentencing under the habitual violent felony offender statute extends to the determination of whether to impose a minimum mandatory term. See State v. Hudson, 698 So. 2d 831, 833 (Fla.1997). Since the trial court erroneously indicated that it did not have discretion in imposing the fifteen-year minimum mandatory term, the appellant is entitled to be resen-tenced.
Appellant raises an additional point. At the resentencing hearing, defense counsel maintained that the presentence investigation report and the guidelines score sheet were inaccurate. The trial court refused to consider whether the documents were accurate. We agree with appellant’s contention that this was error. Section 775.084(3)(a), Florida Statutes (1991), states that the trial court shall obtain and consider a presentenc-ing investigation prior to the imposition of a sentence as a habitual violent felony offender. See Barton v. State, 706 So. 2d 399 (Fla. 2d DCA 1998). The duty to obtain and consider a presentence investigation obviously includes the obligation to consider a challenge to the accuracy of the report.
We reverse the habitual violent felony offender sentence and remand for resentencing. On remand the trial court must consider any challenge to the accuracy of the presentence investigation report and the scoresheet, and it must also recognize that imposition of the minimum mandatory provision is discretionary.
Reversed and remanded.
THREADGILL, A.C.J., and NORTHCUTT, J., Concur. •
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Moore v. State, 768 So. 2d 1140 (Fla. 1st DCA 2000)…al offender sentence vacated on direct appeal could not be questioned, if objection to imposition of sentence as a habitual felony offender without benefit of a presentenee investigation report had been made and overruled. See, e.g., Kelly v. State, 727 So. 2d 1084, 1085 (Fla. 2d DCA 1999) (holding “duty to obtain and consider a presen-tence investigation obviously includes the obligation to consider a challenge to the accuracy of the report”); McMann v. State, 698 So. 2d 386, 388 (Fla. 4th DCA 1997)(reversing…
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Coleman v. State, 739 So. 2d 626 (Fla. 2d DCA 1999)…greed with Cotton and certified conflict with McKnight. See State v. Wise, 24 Fla. L. Weekly D657, - So. 2d -, 1999 WL 123568 (Fla. 4th DCA Mar.10, 1999). Applying Cotton, we reverse and remand for a new sentencing hearing. See also Kelly v. State, 727 So. 2d 1084, 1085 (Fla. 2d DCA 1999) (“Since the trial court erroneously indicated that it did not have discretion in imposing the fifteen-year minimum mandatory term [habitual violent felony offender], the appellant is entitled to be resentenced.”). Finally,…
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Mason v. State, 210 So. 3d 120 (Fla. 2d DCA 2016)…d discretion to impose the sentences consecutively or concurrently. When a trial court labors under the mistaken impression that it cannot exercise its discretion at sentencing, the appellant is entitled to be resentenced. See, e.g., Kelly v. State, 727 So. 2d 1084, 1085 (Fla. 2d DCA 1999); Rudd v. State, 177 So. 3d 1015, 1017-18 (Fla. 1st DCA 2015); Colletta v. State, 126 So. 3d 1090, 1091 (Fla. 4th DCA 2012). The trial court did not have the benefit of Williams at the time of Mr. Mason’s sentencing, and so w…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Hudson, 698 So. 2d 831 (Fla. 1997)
- Barton v. State, 706 So. 2d 399 (Fla. 2d DCA 1998)
- Kelly v. State, 629 So. 2d 325 (Fla. 2d DCA 1993)
- State v. Grubb, 629 So. 2d 325 (Fla. 5th DCA 1994)