EDDIE MURPHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2007-03-30
No. 5D06-1131
PALMER and TORPY, JJ., concur.
952 So. 2d 1214 Florida District Court of Appeal, Fifth District (2007) Negative Treatment
Cited by 6 cases

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Holding

The court held that a trial court must ensure a defendant receives written notice of the intent to seek habitual offender status and is aware of the consequences before imposing such a sentence.


Headnotes

[1] A trial court must provide a defendant with written notice of the State's intent to seek an habitual offender sentence before imposing such a sentence following a guilty…

[2] A trial court must inquire during the plea colloquy whether the defendant is personally aware of the possibility and reasonable consequences of habitualization.

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Facts & Procedural History

Eddie Murphy pleaded guilty under an agreement that mentioned potential double sentencing for prior felonies. The State filed notice of intent to seek…

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Opinion of the Court
MONACO, J.

MONACO, J.

The primary issue raised by the appellant, Eddie Murphy, in this appeal is whether the trial court erred in imposing an habitual felony offender sentence. ' Mr. Murphy asserts that the State failed to give him sufficient written notice of its intent to seek habitualization, and that in any event the trial court failed to inquire of him during the plea colloquy if he was aware of the consequences of habitualization. It appears that Mr. Murphy is correct.

At his plea and sentencing hearing Mr. Murphy was asked if he had read and understood the plea agreement that he signed, to which he replied in the affirmative. The plea agreement basically said that there was no dispositional understanding and that Mr. Murphy was pleading to an habitual traffic offender charge. It further indicated that if Mr. Murphy had two or more prior felonies, he might receive a sentence double the normal five-year sentence for a third-degree felony. No further explanation was given.

During sentencing on the “open” plea agreement, the State pointed out that they had filed an “habitual felony offender notice” in open court that showed numerous prior felony convictions. The trial court sentenced Mr. Murphy to 5 years imprisonment in the custody of the Florida Department of Corrections, saying:

The Court: Furthermore, Mr. Murphy, I’m going to find that you are a habitual felony offender and this 5-year sentence is as a habitual felony offender. Because it is as a habitual' felony' offender sentence, I could have sentenced you to 10 years, but I don’t choose to do that.

Mr. Murphy now argues that the State failed to give him sufficient written notice of its intent to seek an habitual felony offender sentence. In addition, he asserts that the trial court failed to adequately inquire during the plea colloquy concerning whether or not he was aware of the consequences of an habitual felony offender sentence.

While a trial court is required to inform a defendant only of the direct consequences of the plea and is under no duty to apprise him or her of any collateral consequences, knowledge that habitualization may affect the possibility of early release through certain programs is considered a direct consequence or one that has a definite, immediate, and largely automatic effect on the range of a defendant’s punishment. See Major v. State, 814 So. 2d 424 (Fla.2002); Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982); see also Boutwell v. State, 776 So. 2d 1014,1016 n. 2 (Fla. 5th DCA 2001). Accordingly, in Ashley v. State, 614 So. 2d 486 (Fla.1993), the Florida Supreme Court held that before a trial court may impose an habitual offender sentence following a plea of guilty or nolo contendere: (1) the defendant must be given written notice of the State’s intent to seek an habitual offender sentence, and (2) the trial court must confirm that the accused is personally aware of that possibility and of the reasonable consequences of habitualization. See also Akers v. State, 890 So. 2d 1257 (Fla. 5th DCA 2005).

It is the second prong that causes us concern. The case law teaches that with respect to this requirement the trial court should, during the plea colloquy, discuss with the defendant his or her eligibility for habitualization, as well as the maximum habitual offender term for the charged offense, the fact that habitualization may affect the possibility of early release through certain programs, and where habitual violent felony offender provisions are implicated, the mandatory minimum term. See Major, 814 So. 2d at 429; Black v. State, 698 So. 2d 1370 (Fla. 2d DCA 1997) (habitual offender sentence cannot be imposed where court failed to advise or determine if defendant knew that he could be ineligible for certain programs affecting early release such as gain time or provisional credit); see also State v. Wilson, 658 So. 2d 521 (Fla.1995).

In the instant case, we are unable to confirm that the first prong was satisfied because it is simply not clear from the record when the State served its formal written notice of intent to habitualize. All that is known is that it was filed with the court on the day of the plea hearing. It is the second prong, however, that is more troubling.

It does not appear that the trial court made any attempt to satisfy the requirement to make Mr. Murphy aware of the reasonable consequences of habituali-zation prior to accepting the plea. In fact, the only comment the trial court made regarding habitualization prior to acceptance of the plea was the following:

The Court: Do you understand if you engage in criminal conduct in the future, your conviction on these charges can be counted against you and could result in your receiving a more severe sentence in that future case?

The colloquy between Mr. Murphy and the trial court was insufficient to satisfy the requirements for habitualization. See Akers, 890 So. 2d at 1260. Moreover, even assuming that the written notice provided by the State was timely, it too did not advise Mr. Murphy of the possibility and consequences of habitualization. Compare State v. Blackwell, 661 So. 2d 282 (Fla.1995) (written plea agreement contained provisions fully explaining all direct consequences of habitualization).

Accordingly, we reverse the judgment and sentence and remand this case to the trial court to allow Mr. Murphy the opportunity to withdraw his plea and proceed to trial on the subject charges. Should Mr. Murphy plead no contest or guilty the trial 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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Citator

Cited By

  • Williams v. State, 2 So. 3d 1089 (Fla. 5th DCA 2009)
    …hing in the record to establish that Appellant was informed about the potential lost gain time as a result of his being [*1090] sentenced as an HFO, an error that affects five years of the twenty-year sentence and requires reversal. Murphy v. State, 952 So. 2d 1214, 1215 (Fla. 5th DCA 2007). To remedy this error, on remand the lower court shall offer the State the option of agreeing to vacate the HFO portion of the sentences in case numbers 05-2007-CF-49098 and 05-2007-CF-49376 or allowing Appellant to withd…
  • Hampton v. State, 217 So. 3d 1096 (Fla. 5th DCA 2017)
    …of Corr., No. 3:14-cv-542-J-32MCR, 2016 WL 6600955, at *5 (M.D. Fla. Nov. 8, 2016).2 Based on the foregoing, we sua sponte considered the matter en banc and now recede from Williams v. State, 2 So. 3d 1089 (Fla. 5th DCA 2009), and Murphy v. State, 952 So. 2d 1214 (Fla. 5th DCA 2007), to the extent that those decisions (1) required trial courts to include in plea colloquies an Ashley-based discussion of the possible impact habitualization could have on accrual of gain time, despite the legislative abolition o…
  • Lerandros L. Smith v. State, 126 So. 3d 397 (Fla. 4th DCA 2013)
    …tary unless the defendant was advised about the potential for lost gain time or early release as a result of the defendant being sentenced as a habitual felony offender. Williams v. State, 2 So. 3d 1089, 1089-90 (Fla. 5th DCA 2009); Murphy v. State, 952 So. 2d 1214, 1215-16 (Fla. 5th DCA 2007); Parker v. State, 808 So. 2d 264, 264 (Fla. 2d DCA 2002); Butler v. State, 764 So. 2d 794, 795 (Fla. 2d DCA 2000); Black v. State, 698 So. 2d 1370, 1371 (Fla. 2d DCA 1997); Watson v. State, 661 So. 2d 72, 72 (Fla. 2d DCA…

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