JOHNNY ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Roberts appealed his drug and violence convictions, challenging both a sentencing error and the denial of a special jury instruction on self-defense. The court found that Roberts' habitual offender sentences for drug possession offenses violated Florida law and reversed and remanded for resentencing on those counts, while affirming the remainder of his convictions.
The court held that habitual offender sentences for drug possession offenses (counts I and VI) violated section 775.084, which exempts such offenses from habituation enhancement, and therefore reversed those sentences for resentencing. The court rejected Roberts' argument regarding the self-defense jury instruction because he failed to present any evidence supporting a self-defense theory, making such an instruction inappropriate.
[1] A sentencing error that is patent on the face of the record may be reviewed for the first time on direct appeal, even if a motion to correct the sentence was not filed be…
[2] Drug offenses relating to the sale of narcotics are not exempt from habitualization under section 775.084, Florida Statutes.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Only drug offenses relating to the purchase or the possession of controlled substances are exempt from habit-ualization; defendants sentenced for offenses relating to the sale of narcotics do not enjoy the benefit of this statutory exemption.”
Establishes the statutory interpretation of Florida's habitual offender law regarding which drug offenses are exempt from habituation enhancement.
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Join FLexlaw to unlock all legal intelligenceRoberts was charged with six counts including various drug offenses, resisting an officer with violence, and battery on a law enforcement officer. He …
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STRINGER, Judge.
Johnny Roberts was charged, in a six-count information, with various drug offenses; resisting an officer with violence; and battery on a law enforcement officer. Roberts was tried and found guilty on all counts. He raises two arguments on appeal, the first of which alleges a sentencing error and requires reversal. Roberts also assigns error to the trial court’s denial of his request for a special jury instruction on the use of nondeadly force; however we reject this argument. Because the record before us indicates that Roberts failed to present any evidence in support of his theory of self-defense, a special instruction was not in order. See McInnis v. State, 642 So. 2d 831 (Fla. 2d DCA 1994).
Although Roberts failed to file a motion to correct this sentence below, the sentencing error he alleges is serious and patent on the face of the record and may therefore be reviewed for the first time on direct appeal. See Fla. R.Crim. P. 3.800; Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999). Roberts received habitual offender sentences for possession of cannabis with intent to sell; sale of cannabis; resisting an officer with violence; battery on a law enforcement officer; and possession of cocaine, counts I-IV and VI, respectively. Roberts contends that counts I, II and VI (possession of cannabis with intent to sell; sale of cannabis; and possession of cocaine) are not subject to habit-ualization pursuant to section 775.084, Florida Statutes (1997).
Section 775.084 is clear, as is case law. Only drug offenses relating to the purchase or the possession of controlled substances are exempt from habit-ualization; defendants sentenced for offenses relating to the sale of narcotics do not enjoy the benefit of this statutory exemption. See § 775.084(l)(a)3.; see also Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999) (reversing habitual felony offender sentence for possession of cocaine with intent to sell); Salters v. State, 781 So. 2d 791 (Fla. 2d DCA 1999) (reversing habitual felony offender sentence for possession of cocaine). Thus, Roberts’ sentences for counts I and VI were improperly enhanced under the habitual felony offender statute. The sentence imposed for count II, however, was not. We, therefore, reverse and remand for resentencing on counts I and VI. Roberts’ judgment and sentences are affirmed in all other respects.
THREADGILL, A.C.J., and BLUE, J., Concur.
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Heriberto Vila v. State, 74 So. 3d 1110 (Fla. 5th DCA 2011)…fense instruction. See Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001) ("As a general rule, a defendant's contention that his injury of another was an accident bars an instruction on self[-]defense or defense of another.”); Roberts v. State, 753 So. 2d 136, 137 (Fla. 2d DCA 2000) (affirming denial of instruction where defendant failed to present any evidence to support self-defense); Moyer v. State, 558 So. 2d 1045 (Fla. 5th DCA 1990) (affirming denial of justification jury instruction because it was…
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Rosalind Virgil v. State, 884 So. 2d 373 (Fla. 2d DCA 2004)…suant to section 775.084(l)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual felony offender for violating section 893.13 relating to the purchase or the possession of a controlled substance. See, e.g., Roberts v. State, 753 So. 2d 136 (Fla. 2d DCA 2000); Woods v. State, 807 So. 2d 727 (Fla. 1st DCA 2002). This includes the offense of possession of cocaine with intent to sell or deliver. See Roberts, 753 So. 2d at 137-38; Ishmael v. State, 735 So. 2d 509 (Fla. 2d DCA 1999). Becaus…
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Norris Hubbard, JR. v. State, 248 So. 3d 177 (Fla. 2d DCA 2018)…to purchase or possession of a controlled substance."); Virgil v. State, 884 So. 2d 373, 373-74 (Fla. 2d DCA 2004) (holding that a defendant may not be sentenced as a HFO for the offense of possession of a controlled substance); Roberts v. State, 753 So. 2d 136, 137 (Fla. 2d DCA 2000) ("Only drug offenses relating to the purchase or the possession of controlled substances are exempt from habitualization; defendants sentenced for offenses relating to the sale of narcotics do not enjoy the benefit of this…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dilbert v. State, 642 So. 2d 831 (Fla. 2d DCA 1994)
- Gregory v. State, 739 So. 2d 100 (Fla. 2d DCA 1999)
- Brown v. State, 744 So. 2d 1184 (Fla. 2d DCA 1999)