DERRICK KEITH EVERETT, A/K/A DERRICK KEITH EVERETTE, A/K/A ANTHONY G. SIMONS, A/K/A ANTHONY KEITH SIMONS, A/K/A WILTON SIMONS, A/K/A WALKER PEOPLE, A/K/A EDWIN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derrick Everett appeals his conviction for attempted murder in the first degree. The court affirms the conviction but reverses and remands for resentencing because the habitual felony offender enhancement statute under which he was sentenced was subsequently declared unconstitutional.
The conviction is affirmed, but the enhanced sentence as a habitual felony offender is reversed and remanded for resentencing. Upon remand, the trial court must resentence Everett pursuant to the valid laws in effect on the date the offense was committed and may impose an upward departure sentence if permissible reasons apply.
[1] A conviction will be affirmed if the appellate record reveals no reversible error.
[2] A sentence imposed under a statute later declared unconstitutional is improper and must be reversed.
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Join FLexlaw to unlock all legal intelligence“Prior to the enactment of chapter 95-182, a defendant convicted of a life felony was not subject to an enhanced punishment as a habitual offender.”
Establishes the legal landscape before the statute allowing habitual felony offender enhancement for life felonies
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Join FLexlaw to unlock all legal intelligenceEverett was convicted by jury of attempted murder in the first degree. He was sentenced as a habitual felony offender under chapter 95-182, Laws of Fl…
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SALCINES, Judge.
The public defender brought this appeal on behalf of Derrick Keith Everett pursuant to Anders1 in regard to the judgment and sentence imposed following a jury’s verdict of guilt for attempted murder in the first degree. A review of the record reveals no reversible error as to the conviction which we affirm without discussion. However, there is error in regard to Everett’s sentence which we reverse and remand for resentencing. In so doing, we note that this case involves an issue implicated by State v. Thompson, 750 So. 2d 643 (Fla.1999), but not squarely addressed therein.
Everett was sentenced as a habitual felony offender, pursuant to chapter 95-182, Laws of Florida, for attempted murder in the first degree, a life felony. Prior to the enactment of chapter 95-182, a defendant convicted of a life felony was not subject to an enhanced punishment as a habitual offender. See Lamont v. State, 610 So. 2d 435 (Fla.1992); see also Lafleur v. State, 661 So. 2d 346, 349 n. 1 (Fla. 3d DCA 1995). Everett’s offense occurred on July 23, 1996, and in reliance upon the fact that the effective date of chapter 95-182 was October 1, 1995, the trial court correctly sentenced Everett as a habitual felony offender. However, the trial judge did not have a crystal ball before her to know that subsequent to the imposition of Everett’s sentence, chapter 95-182 would be declared unconstitutional as violative of the single-subject rule. See Thompson, 750 So. 2d at 649. Thus, Everett’s enhanced sentence as a habitual felony offender is now improper and must be reversed.2 Upon remand, the trial court shall resen-tence Everett pursuant to the valid laws in effect on the date the offense was committed. See Heggs v. State, 759 So. 2d 620 (Fla.2000). Finally, on resentencing the trial court may impose an upward departure sentence if one or more permissible reasons are applicable.
Affirmed in part; reversed and remanded for resentencing.
GREEN, A.C.J., and CASANUEVA, J„ Concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Anders Briefs, 581 So. 2d 149 (Fla.1991); State v. Davis, 290 So. 2d 30 (Fla.1974).
. Upon this court’s request, the parties provided supplemental briefing on this point. Both the public defender and the State conceded that the imposition of a habitual felony offender enhancement was improper in this case.
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Trotter v. State, 825 So. 2d 362 (Fla. 2002)…d District observed in a similar circumstance, the trial court did not have “a crystal ball” to know that subsequent to the imposition of Trotter’s sentence, this Court would declare the 1995 sentencing guidelines unconstitutional. Everett v. State, 770 So. 2d 192, 193 (Fla. 2d DCA 2000). The trial court in this case originally concluded that the appropriate sentence for Trotter’s drug trafficking violation was 83.2 months — the sentence suggested by the State. See Trotter, 801 So. 2d at 1042. Thus, at the t…
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Kinsey v. State, 831 So. 2d 1253 (Fla. 2d DCA 2002)…95-182 is from October 1, 1995, to May 24, 1997). Since Kinsey’s life felonies were committed on January 27, 1997, during the window period, the habitual felony offender sentences imposed for them must be reversed. This court in Everett v. State, 770 So. 2d 192, 193 (Fla. 2d DCA 2000), invalidated a habitual felony offender sentence for a life felony committed during the window period and directed on remand that the trial court resentence the defendant under the version of the sentencing guidelines proper…
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Woodson v. State, 777 So. 2d 1167 (Fla. 3d DCA 2001)…s in effect on the date the offense was committed. See Heggs v. State, 759 So. 2d 620 (Fla.2000). Finally, on resen-tencing the trial court may impose an upward departure sentence if one or more permissible reasons are applicable. Everett v. State, 770 So. 2d 192, 193 (Fla. 2d DCA 2000). In accordance with Everett, we reverse the habitual offender adjudication and remand for resentencing pursuant to the valid laws in effect on the date the offense was committed. The trial court may impose an upward departur…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- State v. Thompson, 750 So. 2d 643 (Fla. 1999)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- State v. Cullen Davis, 290 So. 2d 30 (Fla. 1974)
- Hollice Lafleur v. State, 661 So. 2d 346 (Fla. 3d DCA 1995)