ROBERT E. PITTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fifth District Court of Appeal clarified procedures for resentencing after vacating a defendant's conviction and habitual offender sentence, establishing that the trial court must remand the case to the pre-plea stage and follow strict statutory requirements before imposing a habitual offender sentence.
The court held that upon remand, the case must begin anew at the pre-plea stage; the State must serve written notice of intent to habitualize if it desires; the State and court must comply with Florida Statutes section 775.084 and the requirements of Ashley v. State; the defendant may enter a plea or proceed to trial; and if the defendant enters a plea after proper notice and advisement, the trial court may impose either a guideline sentence or a habitual offender sentence within its discretion.
[1] A prior appellate court opinion vacating a judgment and sentence and remanding for further proceedings requires the case to begin again at the pre-plea stage.
[2] Before a defendant can be sentenced as an habitual offender, the defendant must receive written notice of the intent to habitualize and be personally informed by the cour…
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Join FLexlaw to unlock all legal intelligence“In the instant case, Pitts I is absolutely clear that both the judgment and sentence were eliminated and the matter remanded for further proceedings. In other words, the matter was remanded to begin again at the pre-plea stage.”
Clarifies that the prior reversal vacated both judgment and sentence, requiring the case to restart at the pre-plea stage rather than merely allowing withdrawal of an accepted plea.
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Join FLexlaw to unlock all legal intelligenceRobert E. Pitts had his judgment and sentence reversed and remanded by this court in a prior decision (Pitts I). Upon remand, two different trial judg…
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PETERSON, J.
This court reversed the judgment against and sentence imposed upon Robert E. Pitts and remanded to the trial court for “proceedings consistent with this opinion.”1 Apparently, the opinion confused the trial court, because two judges interpreted their duties differently. One trial judge concluded that if Pitts wanted to affirm his plea, an habitual offender sentence could not be imposed. Another trial judge, the one reaffirming the original sentence that is the subject of this appeal, concluded that Pitts only had the right to withdraw his plea and go to trial or the original habitual sentence would stand.
In reversing Pitts I, and remanding to the trial court, this court cited Collins v. State, 665 So. 2d 318 (Fla. 4th DCA 1995) as a guide to the resentencing proceedings. In Collins, the defendant’s plea was accepted by the court followed by the State’s announcement that it intended to habitualize but failed to give notice. The court granted a continuance to provide an opportunity to the State to give the defendant the notice. The State then gave notice, a sentencing hearing was held and an habitual felony sentence was imposed. The district court vacated the sentence citing non-compliance with the requirement of Ashley v. State, 614 So. 2d 486 (Fla.1993). Ashley requires the following to take place before the court’s acceptance of a plea and sentencing as an habitual offender:
1. The defendant must be given written notice of the intent to habitualize.
2. The sentencing court must then confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.
Collins also described the procedure to be followed upon remand:
1. A resentencing hearing is to be held.
2. The defendant must be given the opportunity to withdraw the plea and proceed to trial.
3. Should the defendant plead nolo or guilty again, the trial court may in its discretion impose a guideline sentence or an habitual offender term provided that the requirements of section 775.084, Florida Statutes (1993) and Ashley are met.
Collins may have caused some confusion for the trial court in the instant case because the judgment of guilt was not vacated before remand in order to allow the defendant to re-enter a plea, a detail of insignificance since it was implied that the intent was to remand to the trial court so that the case could begin again at the pre-plea stage.
In the instant case, Pitts I is absolutely clear that both the judgment and sentence were eliminated and the matter remanded for further proceedings. In other words, the matter was remanded to begin again at the pre-plea stage.
We begin again by reaffirming that Pitts’ judgment and sentence have been vacated and upon remand:
1. The State will have the opportunity to serve a written notice of intent to habitualize if it desires.
2. The State and the court must follow the provisions of section 775.084 and the requirements of Ashley.
3. Pitts may enter a plea or proceed to trial.
4. If Pitts enters a plea after having been served with a notice of intent to habitualize and having been advised by the court of the possibility and consequences of habitualization as required by Ashley, he is to be adjudicated and sentenced in accordance with the guidelines or habitu-alized, the choice to be within the trial court’s discretion.
We remand for the procedure outlined above.
REMANDED.
GRIFFIN and PLEUS, JJ., concur. . Pitts v. State, 766 So. 2d 1191 (Fla. 5th DCA 2000) (Pitts I).
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Murphy v. State, 952 So. 2d 1214 (Fla. 5th DCA 2007)…rial court could, in its discretion, impose a guideline sentence or an habitual offender term provided that the requirements of section 775.084, Florida Statutes and Ashley are met. See State v. Jefferson, 665 So. 2d 1057 (Fla.1996); Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002). REVERSED and REMANDED. PALMER and TORPY, JJ., concur.…
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Gray v. State, 829 So. 2d 986 (Fla. 1st DCA 2002)…notice of the state’s intention to seek an enhanced sentence, the state did not file a written notice as required by the statute. We reverse the judgment and sentence and remand the case for a trial or a new plea and sentencing. See Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002). On remand, the trial court may impose a sentence under the habitual offender statute, provided the state has filed a timely written notice and the court has complied with all of the other requirements of the statute. WEBSTER,…
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Ashe v. State, 951 So. 2d 1023 (Fla. 1st DCA 2007)…. Actual verbal notice of intent to seek habitualization does not cure failure to file written notice of intent to seek habitualization where an open plea of guilty is entered. See Gray v. State, 829 So. 2d 986 (Fla. 1st DCA 2002); Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002). However, on remand, the trial court should consider State v. Blackwell, 661 So. 2d 282 (Fla.1995) where the Florida Supreme Court held that a written plea agreement acknowledging potential habitualization [*1024] signed by the d…
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
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Pitts v. State, 766 So. 2d 1191 (Fla. 5th DCA 2000)
- Jones v. Third Jud. Cir. Court, 665 So. 2d 318 (Fla. 1st DCA 1995)
- Collins v. State, 665 So. 2d 318 (Fla. 4th DCA 1995)