PHILLIP ROSS, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The Fourth District Court of Appeal affirmed Ross's conviction but reversed his sentence because the trial court improperly exercised discretion in refusing to apply the prison releasee reoffender statute. Following the Florida Supreme Court's decision in State v. Cotton, the court held that prosecutorial discretion to pursue such sentences is not subject to judicial review, and the trial court was bound to apply the statute upon the state's request.
The trial court lacked discretion to refuse to impose a prison releasee reoffender sentence; prosecutorial discretion in pursuing violent career criminal and other enhanced sentencing sanctions is not generally subject to judicial review absent a compelling equal protection argument. However, the court cannot sentence a defendant under both the prison releasee reoffender act and the habitual felony offender act simultaneously due to double jeopardy constraints.
[1] The Prison Releasee Reoffender Act removes sentencing discretion from the judicial branch and places it in the executive branch.
[2] Prosecutorial discretion in deciding whether to pursue certain sentencing sanctions, absent a compelling equal protection argument, is generally not subject to judicial r…
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Join FLexlaw to unlock all legal intelligence“the exercise of prosecutorial discretion in deciding whether to pursue violent career criminal, habitual felony offender or habitual violent felony offender sanctions is not generally subject to judicial review”
Establishes the controlling principle that prosecutorial discretion over enhanced sentencing is not reviewable by courts absent compelling equal protection arguments
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Join FLexlaw to unlock all legal intelligenceRoss was convicted and sentenced as a habitual felony offender. At sentencing, the trial court declined to apply the prison releasee reoffender statut…
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SHAHOOD, J.
We affirm the issues raised by appellant on direct appeal, but reverse on the state’s cross-appeal.
On cross-appeal, the state argues, and we agree, that the trial court erred in failing to sentence appellant as a prison releasee reoffender. At the sentencing hearing, the trial court sentenced appellant as a habitual felony offender, but held that the prison releasee reoffender statute did not apply. The state objected on the grounds that the evidence did not support the court’s findings, and that the state, rather than the court, had the discretion whether to apply the prison releasee reof-fender statute. See § 775.082(8)(a)l(1997).1 On appeal, the state argues that the court was under the belief that it possessed the discretion to refuse to impose a prison releasee reoffen-der under State v. Wise, 744 So. 2d 1035 (Fla. 4th DCA 1999), quashed, 762 So. 2d 523 (Fla.2000).
Appellant acknowledges that a conflict exists among the district courts of appeal regarding a prosecutor’s discretion to request that a defendant be sentenced as a prison releasee reoffender and concedes that a resolution of that conflict is disposi-tive in this case.
In State v. Cotton, 769 So. 2d 345 (Fla. 2000), the Florida Supreme Court determined that the Prison Releasee Reoffen-der Act did not violate the separation of powers clause of the Florida Constitution. The Prison Releasee Reoffender Act removed substantially all sentencing discretion from the judicial branch, and placed it in the executive branch. See id. As a general principle, absent a compelling equal protection argument, the exercise of prosecutorial discretion in deciding whether to pursue violent career criminal, habitual felony offender or habitual violent felony offender sanctions is not generally subject to judicial review. See id. Based on its opinion in Cotton, the Florida Supreme Court quashed Wise. See State v. Wise, 762 So. 2d 523 (Fla.2000).
Based on Cotton, the trial court in this case was without discretion to refuse to impose a prison releasee reoffender sentence. Accordingly, appellant’s sentence must be reversed and remanded for resentencing. Upon resentencing, however, the court cannot sentence appellant under both the prison releasee reoffender act and the habitual felony offender act because to do so violates the double jeopardy clause. See Adams v. State, 750 So. 2d 659 (Fla. 4th DCA 1999).
CONVICTION AFFIRMED; SENTENCE REVERSED, REMANDED FOR RESENTENCING,
KLEIN and GROSS, JJ., concur,
. The 1998 Supplement to this section renumbered 775.082(8)(a)l to 775.082(9)(ajl.
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Ross v. State, 947 So. 2d 699 (Fla. 4th DCA 2007)…weapon. On direct appeal, this court affirmed the conviction, but reversed the sentence imposed because the lower court failed to impose a prison releasee reoffen-der sentence, even though Ross qualified for such an enhanced sentence. Ross v. State, 770 So. 2d 1250, 1251 (Fla. 4th DCA 2000) [Ross I ] (“the trial court in this case was without discretion to refuse to impose a prison releasee reoffender sentence. Accordingly, appellant’s sentence must be reversed and remanded for resentencing. Upon resentencing,…
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Ross v. State, 831 So. 2d 817 (Fla. 4th DCA 2002)…POLEN, C.J. Phillip Ross contends the trial court erred in its assessment of certain costs on resentencing. We agree. Per this court’s opinion in Ross v. State, 770 So. 2d 1250 (Fla. 4th DCA 2000), Ross appeared before the trial court on December 14, 2000 for resentencing as a Prison Release Reóffender. § 775.082(9), Fla. Stat. (2000). A successor judge presided over this resentencing hearing. The judge sentenced Ross to t…
Authorities Cited
- State v. Cotton, 769 So. 2d 345 (Fla. 2000)
- Pollock v. Couffer, 750 So. 2d 659 (Fla. 5th DCA 1999)
- State v. Wise, 744 So. 2d 1035 (Fla. 4th DCA 1999)
- State v. Wise, 762 So. 2d 523 (Fla. 2000)
- Green v. State, 762 So. 2d 523 (Fla. 2000)