EDWARD DOLANSKY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2007-08-21
No. 1D06-1875
BENTON, HAWKES, and THOMAS, JJ., concur.
964 So. 2d 188 Florida District Court of Appeal, First District (2007) Positive Treatment
Cited by 3 cases

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Synopsis

Edward Dolansky challenged his conviction and sentence on three grounds. The court affirmed two grounds without discussion but reversed his habitual felony offender (HFO) sentence, holding that a trial court cannot impose an HFO sentence that is equal to or less than the mandatory prison releasee reoffender (PRR) sentence for the same count.


Holding

A trial court lacks authority to sentence a defendant as an HFO to a term less than or equal to that required under the PRR statute, because section 775.082(9)(e) only authorizes deviation from the PRR sentencing scheme to impose a greater sentence of incarceration.


Headnotes

[1] A trial court may deviate from the Prison Releasee Reoffender (PRR) statutory sentencing scheme to impose a greater sentence under the Habitual Felony Offender (HFO) stat…

[2] A sentence imposed under the HFO statute cannot be less than or equal to a sentence imposed under the PRR statute when the PRR sentence is life imprisonment.

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Key Quotes

“Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.”

Establishes that courts may deviate from PRR sentencing only to impose greater sentences

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Facts & Procedural History

Dolansky was convicted of armed robbery, a first-degree felony punishable by life in prison. He was sentenced to life in prison as a prison releasee r…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant challenges his conviction and sentence on three grounds. We affirm two of those grounds without discussion. However, we agree with Appellant’s argument that the trial court reversibly erred by sentencing him to life in prison as a prison releasee reoffender (PRR) and to 40 years in prison as a habitual felony offender (HFO) on the same count. Consequently, for the reasons discussed below, Appellant’s sentence as an HFO is reversed and remanded.

Section 775.082(9)(a)3, Florida Statutes (2004), provides that once a defendant is determined to be a PRR, he must be sentenced in accordance to .the sentencing scheme set out in subsections (a) through (d). See id.; see also Walls v. State, 765 So. 2d 783, 734 (Fla. 1st DCA 2000). Section 775.082(9)(e) provides: “Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.” Id. (emphasis added); see also Walls, 765 So. 2d at 734. Thus, trial courts retain discretion to deviate from the PRR statutory sentencing scheme by imposing greater sentences under the HFO statute. See Walls, 765 So. 2d at 734.

Here, Appellant was convicted of armed robbery, a first-degree felony punishable by life in prison. See § 812.13(2)(a), Fla. Stat. (2004). The PRR sentence for that crime is life in prison. See § 775.082(9)(a)(3)(a), Fla. Stat. (2004). Under the HFO statute, section 775.084(4)(a)(l), Florida Statutes (2004), life and first-degree felonies are punishable by a term of life imprisonment. See id. Appellant was sentenced to life in prison as a PRR, and 40 years in prison as an HFO. However, because section 775.082(9)(e) only authorizes the court to deviate from the PRR sentencing scheme to impose a greater sentence of incarceration, and a 40-year term under the HFO statute is not greater than a life term under the PRR statute, the trial court was without authority to sentence Appellant as an HFO to a term less than or equal to that required under the PRR statute. See Walls, 765 So. 2d at 734; Palmore v. State, 790 So. 2d 444 (Fla. 1st DCA 2000) (reversing HFO sentence where defendant sentenced as PRR to life and HFO statute does not authorize sentence longer than life).

Appellant’s sentence is REVERSED and REMANDED with directions to strike that portion of Appellant’s sentence reflecting his adjudication as an HFO. See Walls, 765 So. 2d at 734; Lee v. State, 917 So. 2d 376 (Fla. 1st DCA 2005); Morris v. State, 910 So. 2d 306 (Fla. 1st DCA 2005). Appellant’s convictions and sentences are AFFIRMED in all other respects.

BENTON, HAWKES, and THOMAS, JJ., concur.


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Citator

Cited By

  • Johnson v. State, 108 So. 3d 1130 (Fla. 1st DCA 2013)
    …the sentence to be legally correct. The court did not attach any documents conclusively refuting the claim. The appellant is correct that the trial court may only sentence him as a PRR as long as the HFO sentence is longer. See Dolansky v. State, 964 So. 2d 188 (Fla. 1st DCA 2007). We therefore reverse and remand for the trial court to attach documents that conclusively refute the claim, or, in the alternative, for the trial court to strike the HFO enhancement. See id. REVERSED AND REMANDED with instruc…
  • …court denied relief finding Petitioner’s claim without merit. Id. As a PRR offender, Petitioner was “not eligible to be sentenced under the sentencing guidelines” and was sentenced to life in prison as a PRR. Id. at 232 (citing Dolansky v. State, 964 So. 2d 188 (Fla. 1st DCA 2007) (per curiam)). Upon review, the Criminal Punishment Code Scoresheet shows Petitioner’s offense level as 8 for armed robbery with a score of 74 points. (Doc. 19-2 at 52-53). The sentence computation is 34.5 months to life. Id.…

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