TERRENCE LEE HARRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harris challenges his violent career criminal sentence under Florida law, arguing that burglary should not qualify as a forcible felony. The court rejected this argument but remanded for resentencing because the trial judge mistakenly believed the violent career criminal sentence was mandatory rather than discretionary.
Burglary does qualify as a forcible felony. However, the trial court erred in believing that a violent career criminal sentence was mandatory once qualifying offenses were established. Under Section 775.084(4)(d), the trial court has discretion to determine whether a violent career criminal sentence is necessary for the protection of the public.
[1] Burglary, as enumerated in Section 776.08, Florida Statutes (2000), qualifies as a "forcible felony" for purposes of sentencing enhancement.
[2] A trial court mistakenly believes it is compelled to impose a violent career criminal sentence when it believes such a sentence is mandatory upon the establishment of qua…
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Join FLexlaw to unlock all legal intelligence“the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established”
Identifies the core error on which the remand is based—the trial court's misunderstanding of its discretion
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Join FLexlaw to unlock all legal intelligenceHarris was sentenced as a violent career criminal under Florida Statutes Section 775.084(1)(d). The sentencing included a burglary conviction. The tri…
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PER CURIAM.
At the outset we reject the appellant’s argument that the “burglary” enumerated in Section 776.08, Florida Statutes (2000), does not qualify as a “forcible felony” and therefore, it does qualify the appellant for sentencing under Section 775.084(l)(d), Florida Statutes (2000). Rodriguez v. State, 837 So. 2d 1177 (Fla. 3d DCA 2003); Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002); Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002).
We remand this matter for resentencing because, as the State concedes, the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established. The trial court actually had discretion, per Section 775.084(4)(d), Florida Statutes (2000), to determine whether the Gort classification, and enhanced sentence, is necessary for the protection of the public. In Calderon v. State, 745 So. 2d 535, 536 (Fla. 3d DCA 1999) we ordered a similar remand, and stated, in language applicable here:
The record shows that the trial court mistakenly believed that a violent career criminal sentence was mandatory. As stated in State v. Harris, 718 So. 2d 933, 934 (Fla. 3d DCA 1998), “[t]he statute calls for the trial court to impose sentence as a violent career criminal unless ‘the court finds ... that it is not necessary for the protection of the public ... ’” See State v. Meyers, 708 So. 2d 661 (Fla. 3d DCA 1998). The sentencing hearing transcript reflects that the trial court believed it was precluded from finding that a violent career criminal sentence was not necessary for the public’s protection merely because defendant qualified for violent career criminal status.
We find no merit in the defendant’s further claim that the sentence imposed was legally “vindictive.” This matter is therefore remanded to the same trial judge for resentencing consistent herewith.
GODERICH, J. and NESBITT, Senior Judge, concur.
SCHWARTZ, Chief Judge
(specially concurring in part, dissenting in part).
I agree without qualification to remanding the cause for resentencing. See Calderon v. State, 745 So. 2d 585 (Fla. 3d DCA 1999). I concur with the “burglary” holding because this court has already so held. But see Delsol v. State, 837 So. 2d 428, 429 (Fla. 3d DCA 2002)(Schwartz, C.J., dissenting in part).
Finally, I believe that the trial judge’s participation in the plea negotiations does not pass muster under Wilson v. State, 845 So. 2d 142 (Fla.2003). See Nairn v. State, 837 So. 2d 519 (Fla. 3d DCA 2003). I would therefore remand for resentencing before another judge. Wilson, 845 So. 2d at 158.
Cases With Similar Vibessemantic neighbors from the corpus
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Soanes v. State, 31 So. 3d 914 (Fla. 4th DCA 2010)…violent career criminal, subject to imprisonment pursuant to this section unless the count finds that such sentence is not necessary for the protection of the public.” § 775.084(3)(c)5., Fla. Stat. (2008) (emphasis added); see also Harris v. State, 849 So. 2d 449, 450 (Fla. 3d DCA 2003) (“We remand this matter for resentencing because ... the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established.”). We are not convinced by…
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Mel Roucell Williams v. State, 249 So. 3d 721 (Fla. 5th DCA 2018)…." § 775.084(4)(e), Fla. Stat. (2017). Therefore, a trial court has the discretion not to sentence a defendant as a violent career criminal if it determines that such a sentence is not necessary for the protection of the public. See Harris v. State, 849 So. 2d 449, 450 (Fla. 3d DCA 2003) ("[T]he trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established. The trial court actually had discretion, per Section 775.084(4)(d), Florida…
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Harris v. State, 35 So. 3d 952 (Fla. 3d DCA 2010)…PER CURIAM. Affirmed. See Harris v. State, 902 So. 2d 183 (Fla. 3d DCA 2005); Harris v. State, 849 So. 2d 449 (Fla. 3d DCA 2003), review dismissed, 25 So. 3d 1221 (Fla.2009); see also Harris v. State, 12 So. 3d 287 (Fla. 3d DCA 2009); Debuisson v. State, 947 So. 2d 531 (Fla. 3d DCA 2006).…
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
- Wilson v. State, 845 So. 2d 142 (Fla. 2003)
- Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002)
- Nairn v. State, 837 So. 2d 519 (Fla. 3d DCA 2003)
- Rodriguez v. State, 837 So. 2d 1177 (Fla. 3d DCA 2003)
- State v. Meyers, 708 So. 2d 661 (Fla. 3d DCA 1998)
- Emilio Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002)
- Turner v. State, 745 So. 2d 535 (Fla. 1st DCA 1999)
- State v. Harris, 718 So. 2d 933 (Fla. 3d DCA 1998)
- Blake v. The Miami Jewish Home FOR THE Aged AT Douglas Gardens, 745 So. 2d 585 (Fla. 3d DCA 1999)
- Silverman v. Matson, 745 So. 2d 585 (Fla. 3d DCA 1999)