WILLIE ESPEL MCSHAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellant was sentenced as a recidivist without following the procedural requirements of Fla.Stat. § 775.11. The court held that although the trial court failed to comply with § 775.11, this failure is not reversible error because the statute has since been repealed and procedural changes may be applied retroactively to pending appeals.
The trial court's failure to follow Fla.Stat. § 775.11 is not reversible error because the statute has since been repealed, and procedural or remedial changes may be immediately applied to pending cases, including those on direct appeal.
[1] A repealed statute cannot form the basis for reversible error on appeal.
[2] Procedural or remedial statutory changes may be applied to pending cases, including those on direct appeal, even if the change became effective after sentencing.
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Join FLexlaw to unlock all legal intelligence“While statutory changes in law are normally presumed to apply prospectively, procedural or remedial changes may be immediately applied to pending cases, including in some instances cases pending on direct appeal.”
Establishes the key distinction between substantive and procedural statutory changes in determining retroactive application
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Join FLexlaw to unlock all legal intelligenceWillie Espel McShay was sentenced as a recidivist under Fla.Stat. § 775.084 (1971). The trial court did not follow the procedures outlined in Fla.Stat…
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WALDEN, Chief Judge.
The trial court sentenced appellant as a recidivist under Fla.Stat. § 775.084 (1971). The court did not follow the procedures outlined in Fla.Stat. § 775.11 (1975), which required the filing of a separate information accusing the alleged recidivist of his former violations, to support the sentencing as a recidivist. In Wright v. State, 291 So. 2d 118 (Fla.App.2nd 1974) the court held that the formalities of § 775.11 must be followed. That court reversed for re-sentencing, without prejudice to the state to proceed under § 775.11.
However, § 775.11 has been repealed, perhaps in response to the suggestion of the Wright court:
“That the procedures under said § 775.11 may well be archaic and cumbersome and that the legislature in the upcoming session may well wish to reconsider its failure in 1971 to repeal that section when it sought to streamline the recidivism concept by enacting § 775.084, . . .” Id. at 121.
In Hamilton v. State, 306 So. 2d 600 (Fla.App.2nd 1975), a statute was enacted (after appellant was sentenced), which required a convicted person to be given credit on his or her sentence for time spent in jail awaiting trial. The Hamilton court stated:
“Under these circumstances, the applicable Florida law dictates that this court apply the law applicable at the time the appeal was decided. See Hollingshead v. State, Fla.App.1st, 1974, 292 So. 2d 617, and Joins v. State, Fla.App.1st, 1974, 287 So. 2d 742, cited therein.” Id. at 601.
But see Ellis v. State, 298 So. 2d 527 (Fla.App.2nd 1974), in which the statute at the time of sentencing provided for a lesser term than its predecessor — in force at the time of the commission of the crime. The Ellis court said:
“The courts of Florida have long held that the statute in effect at the time of the commission of the crime, rather than at the time of sentencing, is the controlling statute.” Id. at 527. In Heilmann v. State, 310 So. 2d 376 (Fla.App.2nd 1975) the court explained the distinction in the different methods of applying statutory revisions:
“While statutory changes in law are normally presumed to apply prospectively, procedural or remedial changes may be immediately applied to pending cases, including in some instances cases pending on direct appeal. Thus, the courts have applied Fla.Stat. § 921.161(1), as amended, to cases on direct appeal even though the change became effective after imposition of sentence by the trial court.” Id. at 377.
The application of a revision in court rules (enacted after sentencing and dealing with procedure) to a case on appeal has been considered by this court, and decided in accord with Heilmann. Collins v. Wainwright, 311 So. 2d 787 (Fla.App.4th 1975). The Collins court stated:
“Appellant was convicted and sentenced in November 1971, at which time there was no rule requiring a presen-tence investigation. Rule 3.710, RCrP, became effective February 1, 1973 (272 So. 2d 65). Appellant suggests that we should apply the rule as it exists at the time of the appeal, citing as analogous authority our decision in Gallagher v. State, Fla.App.1974, 300 So. 2d 299. See also Joins v. State, Fla.App.1974, 287 So. 2d 742. We accept appellant’s suggestion. Accordingly, while the sentencing procedure adopted by the trial judge was appropriate at the time, its appropriateness has been changed by a change in the law between the conviction and sentence and the appearance of the cause before this court. The rule applicable to this cause now requires that on this record a presentence investigation must be considered prior to imposition of sentence, since that record does not demonstrate that appellant had ever been convicted of a prior felony.” Id. at 788-789.
See also, Sharp v. State, 303 So. 2d 56 (Fla.App.4th 1974); contra, Andrews v. State, 316 So. 2d 296 (Fla.App.1st 1975). We hold that although the trial court failed to follow the requirements of Fla. Stat. § 775.11, the failure is not reversible error as Fla.Stat. § 775.11 has since been repealed.
Affirmed.
OWEN and MAGER, JJ., concur.
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Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979)…ore, contrary to the trial court’s ruling, the fact that appellant’s offense was committed prior to the effective date of Section 39.111(6) does not render this statute inapplicable to appellant. Section 39.111(6) is procedural. See McShay v. State, 321 So. 2d 464 (Fla.4th DCA 1975). While statutory changes in the law are normally presumed to apply prospectively, procedural changes are to be applied to pending cases. Heilmann v. State, 310 So. 2d 376 (Fla.2d DCA 1975); McShay v. State, supra. See also Hall v.…
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Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976)…turned a verdict of guilty but it did not allege that the court had entered a judgment of guilty. However, the error is harmless since it is no longer necessary to implement § 775.084 F.S. by way of an information. McShay v. State, Fla.App.4th 1975, 321 So. 2d 464. Appellant next complains that the state adduced no proof whatsoever to show that imposition of sentence under § 775.084 was necessary for the protection of the public from further criminal activity by appellant. It is quite clear that not every s…
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State v. Eldridge Pizarro, 383 So. 2d 762 (Fla. 4th DCA 1980)…active application of an amended or repealed statute affecting prosecution or punishment is unconstitutional. Article X, Section 9, Florida Constitution. Only procedural or remedial statutory changes may be applied to pending cases. McShay v. State, 321 So. 2d 464 (Fla. 4th DCA 1975). Since the Youthful Offender Act alters the prescribed punishments for those persons meeting its requirements, it cannot apply to offenses committed prior to its effective date. See Ellis v. State, 298 So. 2d 527 (Fla. 2d DCA 197…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- In re Florida Rules of Criminal Procedure, 272 So. 2d 65 (Fla. 1972)
- Ellis v. State, 298 So. 2d 527 (Fla. 2d DCA 1974)
- Joins v. State, 287 So. 2d 742 (Fla. 1st DCA 1974)
- Heilmann v. State, 310 So. 2d 376 (Fla. 2d DCA 1975)
- Collins v. Louie L. Wainwright, 311 So. 2d 787 (Fla. 4th DCA 1975)
- Wright v. State, 291 So. 2d 118 (Fla. 2d DCA 1974)
- Hollingshead v. State, 292 So. 2d 617 (Fla. 1st DCA 1974)
- Beaver v. State, 300 So. 2d 299 (Fla. 2d DCA 1974)
- Hamilton v. State, 306 So. 2d 600 (Fla. 2d DCA 1975)
- Parker v. State, 303 So. 2d 56 (Fla. 4th DCA 1974)