MARK A. KEPNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Mark Kepner appealed his convictions for aggravated fleeing and eluding and grand theft, along with his habitual felony offender sentence, raising three issues. The Florida Fourth District Court of Appeal affirmed the first two issues but reversed and remanded on the third issue regarding the trial court's failure to renew the offer of counsel at sentencing.
The court affirmed on the first two issues: the shotgun notice was sufficient, and Blakely v. Washington does not entitle a defendant to have a jury determine whether he has the requisite offender convictions for a habitual sentence. The court reversed and remanded on the third issue, holding that the trial court's failure to renew the offer of counsel prior to sentencing was reversible error requiring resentencing.
[1] A "shotgun" notice of intent to seek habitual offender sanctions is sufficient to inform a defendant of the sanction sought.
[2] The Sixth Amendment right to trial by jury does not extend to the determination of prior offender convictions for habitual sentencing.
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“the "shotgun" notice gives a defendant "all the notice necessary to prepare the sentencing in his case."”
Establishes that the notice to seek habitual offender sanctions was constitutionally sufficient
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKepner was convicted of aggravated fleeing and eluding and grand theft and received a habitual felony offender sentence. At trial, Kepner initially ha…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Aggravated Fleeing And Eluding cases and more on FLexlaw
SHAHOOD, J.
Appellant, Mark Kepner, appeals his judgment of conviction on the charges of aggravated fleeing and eluding and grand theft, and his corresponding habitual felony offender sentence. Appellant raises three issues on appeal. We affirm the first two issues raised, but reverse the third issue and remand to the trial court for further proceedings consistent with this opinion.
As his first issue, appellant argues that the notice to seek habitual offender sanctions was deficient because it did not sufficiently inform him of the sanction sought. This court very recently held in Washington v. State, 895 So. 2d 1141 (Fla. 4th DCA 2005), that the “shotgun” notice gives a defendant “all the notice necessary to prepare the sentencing in his case.” As in Washington, we affirm because the “shotgun” notice given in this case was sufficient.
In addition, he argues that the imposition of the habitual offender sanction violated his Sixth Amendment right to trial by jury. In McBride v. State, 884 So. 2d 476 (Fla. 4th DCA 2004), we held that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does not entitle a defendant to have a jury determine whether he has the requisite offender convictions for a habitual sentence. Thus, we affirm on this issue as well.
In his second issue, appellant urges that the trial court deprived him of his Due Process protections by refusing to grant him a defense continuance. The granting of a continuance is within the discretion of the trial court and will not be disturbed absent an abuse of that discre tion. See Scott v. State, 717 So. 2d 908, 911 (Fla.1998). The ruling will be sustained unless no reasonable person would take the view adopted by the trial court. Id.; see also Randolph v. State, 853 So. 2d 1051 (Fla.2003); Nicholson v. Nicholson, 717 So. 2d 123, 124 (Fla. 4th DCA 1998) (ordinarily an appellate court will not overturn a trial court’s ruling on a motion for continuance).
On this record, there is no evidence that the trial court abused its discretion in refusing to discharge appellant’s court-appointed attorney. Likewise, there is no evidence that the trial court abused its discretion in refusing to thereafter grant appellant’s motion for continuance once appellant chose to proceed without an attorney.
Finally, appellant argues that the court erred in failing to renew the offer of counsel prior to sentencing. Appellee acknowledges that the trial court did not renew the offer of counsel at the beginning of the sentencing portion of the proceeding.
Rule 3.111(d)(5), Florida Rules of Criminal Procedure, provides that an offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceeding at which the defendant appears without counsel. In Hardy v. State, 655 So. 2d 1245 (Fla. 5th DCA 1995), the court held that the trial court must renew the offer of counsel at sentencing, a critical stage in the proceedings. “Even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.” Id. at 1247-48; see also Hodas v. State, 603 So. 2d 21 (Fla. 4th DCA 1992). Appellee concedes, and we agree, that the court’s failure to renew the offer of counsel prior to sentencing was error requiring reversal and resentencing.
Affirmed in part; Reversed in part, and Remanded for Resentencing.
STONE and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Monte v. State, 51 So. 3d 1196 (Fla. 4th DCA 2011)…is not considered a knowing waiver of the right to counsel” before sentencing. Hardy v. State, 655 So. 2d 1245, 1248 (Fla. 5th DCA 1995). The trial court erred in failing to renew an offer of counsel before Monte’s sentencing. See Kepner v. State, 911 So. 2d 1256, 1258 (Fla. 4th DCA 2005) (“[T]he court’s failure to renew the offer of counsel prior to sentencing was error requiring reversal and resentencing.”); Bowman v. State, 550 So. 2d 544, 544 (Fla. 4th DCA 1989) (“[W]e reverse appellant’s sentence since…
-
Luton v. State, 934 So. 2d 7 (Fla. 3d DCA 2006)…ence or release from supervision. The Blakely decision does not require that such findings be made by the jury. See Tillman v. State, 900 So. 2d 633 (Fla. 2d DCA 2005); Frumenti v. State, 885 So. 2d 924 (Fla. 5th DCA 2004); see also Kepner v. State, 911 So. 2d 1256 (Fla. 4th DCA 2005). Affirmed. . According to the information, the crime date was May 27, 2002. . The statutory findings referred to by the defendant are: 2. The felony for which the defendant is to be sentenced was committed: a. While the defe…
-
Travis v. State, 969 So. 2d 532 (Fla. 1st DCA 2007)…e Parker v. State, 539 So. 2d 1168, 1169 (Fla. 1st DCA 1989) (holding that trial court’s failure to renew offer of assistance of counsel at sentencing hearing compelled vacating of sentence and remanding for re-sentencing); see also Kepner v. State, 911 So. 2d 1256, 1258 (Fla. 4th DCA 2005); Beard v. State, 751 So. 2d 61, 62 (Fla. 2d DCA 1999); Hardy v. State, 655 So. 2d 1245, 1247-48 (Fla. 5th DCA 1995). Immediately after the dismissal of the jury, the court proceeded with the sentencing process. Even thoug…
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
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- McBRIDE v. State, 884 So. 2d 476 (Fla. 4th DCA 2004)
- Randolph v. State, 853 So. 2d 1051 (Fla. 2003)
- Washington v. State, 895 So. 2d 1141 (Fla. 4th DCA 2005)
- Scott v. State, 717 So. 2d 908 (Fla. 1998)
- Hardy v. State, 655 So. 2d 1245 (Fla. 5th DCA 1995)
- Hodas v. State, 603 So. 2d 21 (Fla. 4th DCA 1992)
- Sila Nicholson v. Nicholson, 717 So. 2d 123 (Fla. 4th DCA 1998)