WILLIAM CALLOWAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed William Calloway's habitual offender sentencing because the trial court improperly applied a 1996 amendment to the habitual offender statute retroactively to crimes committed in June 1996, before the amendment's October 1, 1996 effective date. Under the statute in effect when the crimes were committed, Calloway could not be habitualized since he had been incarcerated for six years for prior convictions, exceeding the then-applicable five-year threshold.
The court held that retroactive application of the amended habitual offender statute to increase punishment for crimes committed before its effective date constitutes fundamental error and is impermissible under ex post facto principles. Calloway did not qualify for habitual offender sentencing under the version of the statute in effect in June 1996 because he had been incarcerated for six years, exceeding the five-year threshold.
[1] A criminal statute may not be applied retroactively to increase punishment for an offense committed before the statute's effective date.
[2] Fundamental sentencing errors, even if unpreserved, may be addressed for the first time on direct appeal.
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Join FLexlaw to unlock all legal intelligence“It is fundamental error to apply an amended version of the habitual offender statute to increase the punishment for an offense committed before the effective date of the amendment.”
Establishes the core legal principle that retroactive application of amended criminal statutes to increase punishment violates ex post facto protections.
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Join FLexlaw to unlock all legal intelligenceCalloway committed felony offenses on June 6, 1996, while incarcerated for prior felony convictions. He had been incarcerated for six years when the c…
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JOANOS, J.
In this direct criminal appeal, appellant contends he was sentenced erroneously as an habitual felony offender for offenses he committed on June 6, 1996, while incarcerated for prior felony convictions. We reverse the sentencing disposition, and remand for resentencing.
Appellant was sentenced under the 1996 amendment to the habitual offender statute, which provides habitualization for a felony committed while the defendant is still serving a prison sentence or other commitment imposed as a result of a prior felony conviction. See § 775.084(1)(a)2.a., Fla.Stat. (Supp.1996).
The effective date of the amended statute which the trial court applied at appellant’s sentencing was October 1, 1996. See Ch. 96-388, § 44, Laws of Fla. Under the provisions of section 775.084 in effect on June 6, 1996, when appellant committed the current offenses, an incarcerated defendant could not be habitualized when the offense for which sentencing was to be imposed was committed more than five years after incarceration for prior felony convictions commenced. See Jeffries v. State, 610 So. 2d 440 (Fla.1992).
Appellant in this case had been incarcerated for six years for the previous convictions when he committed the current offenses.
Thus, he did not qualify for sentencing as an habitual felony offender under the version of section 775.084 then in effect.
It is fundamental error to apply an amended version of the habitual offender statute to increase the punishment for an offense committed before the effective date of the amendment. See Carnegie v. State, 564 So. 2d 233, 234 (Fla. 1st DCA 1990); Swinson v. State, 588 So. 2d 296, 297 (Fla. 5th DCA 1991).
Notwithstanding the reasonableness of the section 924.051(3) restrictions on the right to appeal, see Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773, 775 (Fla.1996), unpreserved fundamental sentencing errors may be addressed for the first time on direct appeal. See State v. Mancino, 714 So. 2d 429, 433 (Fla.1998)(“A sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal’.”).
See also Nelson v. State, 719 So. 2d 1230, 1231-1232 (Fla. 1st DCA 1998); Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997).
Accord Baker v. State, 724 So. 2d 121 (Fla. 1st DCA 1998)[23 Fla.
L. Weekly D2562]; Copeland v. State, 720 So. 2d 608 (Fla. 1st DCA 1998)[23 Fla.
L. Weekly D2519]; McKnight v. State, — So. 2d - (Fla. 1st DCA 1998)[23 Fla.
L. Weekly D2402],
It is undisputed that appellant does not qualify for habitual offender sentencing under the version of the habitual offender statute in effect when he committed the current offenses. Appellant’s trial counsel raised general objections to the trial court’s decision to impose an habitual offender sentence, but the ex post facto argument we have been asked to consider was not brought to the trial court’s attention, either by specific objection or by rule 3.800(b) motion. Although the precise sentencing issue was not preserved, application of the amended habitual offender statute to appellant’s current offenses constitutes fundamental error which may be addressed for the first time on appeal.
Accordingly, we reverse the ten-year habitual offender sentences, and remand this cause for resentencing in accordance with the statutes in effect when appellant committed the current crimes.
BARFIELD, C.J. and ERVIN, J., CONCUR.
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Manzell Arnold v. State, 755 So. 2d 696 (Fla. 4th DCA 1999)…plied retrospectively. Not only was Arnold released from prison before the Act became effective, but he was convicted for crimes committed on April 1, 1997, prior to the Act’s effective date. See generally Calloway v. State, 24 Fla. L. Weekly D 552, 734 So. 2d 1079 (Fla. 1st DCA 1999) (It is fundamental error to apply an amended version of the habitual offender statute to increase the punishment for an offense committed before the effective date of the amendment.). Hence, we hold that appellant’s sentence purs…
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Wendall Jermaine Hall v. State, 738 So. 2d 374 (Fla. 1st DCA 1999)…with statutory requirements, and have held specifically that reliance on non-qualifying predicate “offenses constitutes fundamental error which may be addressed for the first time on [direct] appeal.” Calloway v. State, 24 Fla. L. Weekly D552, D552, 734 So. 2d 1079, 1080 (Fla. 1st DCA 1999). See generally Nelson v. State, 719 So. 2d 1230, 1231-1232 (Fla. 1st [*379] DCA 1998). See also, e.g., Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997). But see Torres v. State, 715 So. 2d 1151 (Fla. 3d DCA 1998). On t…
Authorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)
- Jeffries v. State, 610 So. 2d 440 (Fla. 1992)
- Baker v. State, 724 So. 2d 121 (Fla. 1st DCA 1998)
- Swinson v. State, 588 So. 2d 296 (Fla. 5th DCA 1991)
- Carnegie v. State, 564 So. 2d 233 (Fla. 1st DCA 1990)
- Copeland v. State, 720 So. 2d 608 (Fla. 1st DCA 1998)