JEFFRIE K. AVERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1987-04-10
No. BI-446
SHIVERS and ZEHMER, JJ., concur.
505 So. 2d 596 Florida District Court of Appeal, First District (1987) Positive Treatment
Cited by 8 cases

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.

Synopsis

Avery was convicted of grand theft and sentenced as a habitual offender to 2½ years incarceration. The court affirmed the conviction but reversed and remanded the sentence because the trial court improperly scored the primary offense as a second-degree felony rather than third-degree, and failed to state specific reasons why habitual offender sentencing was necessary for public protection.


Holding

The court affirmed the conviction because the state presented adequate circumstantial evidence sufficient to support the grand theft conviction. However, the court reversed and remanded on sentencing because the trial court improperly classified grand theft as a second-degree felony rather than third-degree felony, and failed to state specific reasons why habitual offender sentencing was necessary for public protection as required by statute.


Headnotes

[1] A defendant's alternative version of events need not be accepted if it is contradicted by other proof showing the version to be false.

[2] Circumstantial evidence, when coupled with physical evidence such as fingerprints, may be sufficient to allow a case to proceed to the jury.

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Key Quotes

“the habitual offender statute "does not reclassify crimes as higher substantive crimes; it merely prescribes longer penalties."”

Establishes that grand theft cannot be scored as a second-degree felony when classified as third-degree, regardless of habitual offender status.

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Facts & Procedural History

Avery was convicted of grand theft of $124.06 taken from a cash drawer bearing his fingerprints. The state presented circumstantial evidence in additi…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

The appellant was convicted of grand theft and sentenced to 2½ years incarceration. Three issues are submitted on appeal: 1. The trial court erred in denying the defense motions for judgment of acquittal and directed verdict; 2. the trial court erred in relying on a facially incorrect scoresheet; and 3. the trial court erred in sentencing the appellant as a habitual offender without specifically finding that such sentencing was necessary for the protection of the public. We affirm as to issue one, but reverse and remand as to issues two and three.

The appellant was found guilty of grand theft of $124.06, taken from a cash drawer which had the appellant’s fingerprints on it. The appellant argues that unless the state was able to prove that the fingerprints could have been left only at the time the theft occurred, the defendant’s alternative version of when his prints were placed on the cash drawer must be accepted as true. The defendant’s version, how- • ever, need not be accepted if it is contradicted by other proof showing the version to be false. Sorey v. State, 419 So. 2d 810 (Fla. 3rd DCA 1982), petition for rev. denied, 476 So. 2d 675 (Fla.1985). Here, the state presented adequate circumstantial evidence which, when coupled with the appellant’s fingerprints found on the cash drawer, was sufficient to allow the trial court judge to send the case to the jury.

Pursuant to Section 775.084(3)(b), Florida Statutes, the state filed a notice of habitual offender status. On the appellant’s guideline scoresheet, the primary offense at conviction, grand theft, was then incorrectly scored as a second degree felony, rather than as a third degree felony as provided by Section 812.014(2)(b), Florida Statutes. The appellant was scored with a total of 58 points, whereas a proper classification would have given him a total of 36 points and placed him in the range of any non-state prison sanction, rather than subjecting him to 2¾⅛ to 3½ years incarceration. This reclassification was clearly in error as the habitual offender statute “does not reclassify crimes as higher substantive crimes; it merely prescribes longer penalties.” Dominguez v. State, 461 So. 2d 277 (Fla. 5th DCA 1985). See also Jennings v. State, 498 So. 2d 1373 (Fla. 1st DCA 1986).

The trial court also failed to state specific reasons why the imposition of the appellant’s sentence under the habitual offender statute was “necessary for the protection of the public from further criminal activity by the defendant.” Section 775.-084(4)(a), Florida Statutes. In determining that a defendant qualifies under the habitual offender statute, a trial court must state the underlying facts and circumstances relied upon in making such a determination. Rosemond v. State, 489 So. 2d 1185, 1186 (Fla. 1st DCA 1986). The court’s conclusive determination in this case, merely reiterating the words of the statute, is' insufficient to justify the imposition of an enhanced sentence.

On remand, a proper scoresheet must be prepared reflecting the primary offense at conviction as a third degree felony. Should the trial court again wish to classify the appellant as a habitual offender, specific reasons for so doing must be stated, as required by the statute. We note that the habitual offender statute only concerns the maximum penalty which may be imposed by law; in this case, a term not exceeding ten years. Section 775.084(4)(a)3.

If, on remand, the trial court also decides to depart from the recommended range provided by the guidelines — any non-state prison sanction — it may not use appellant’s status as a habitual felon as a reason, Whitehead v. State, 498 So. 2d 863 (Fla. 1986), but must state other clear and convincing reasons for departing. Additionally, because of the questionable vitality of the habitual offender statute in light of some of the language in Whitehead, we certify the following question as being one of great public importance:

DOES A TRIAL COURT RETAIN THE AUTHORITY TO CLASSIFY AND SENTENCE A DEFENDANT AS A HABITUAL OFFENDER, FOLLOWING THE ADOPTION OP GUIDELINE SENTENCING?

REVERSED and REMANDED for further proceedings consistent with this opinion.

SHIVERS and ZEHMER, JJ., concur.


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Citator

Cited By

  • Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)
    …First District has, in several decisions, reached the same result we reach. Brooks v. State, 509 So. 2d 364 (Fla. 1st DCA 1987); Slay v. State, 508 So. 2d 1268 (Fla. 1st DCA 1987); Allen v. State, 506 So. 2d 1149 (Fla. 1st DCA 1987); Avery v. State, 505 So. 2d 596 (Fla. 1st DCA 1987); Johnson v. State, 503 So. 2d 959 (Fla. 1st DCA 1987). The Second District appears also to have reached the same result. Smith v. State, 503 So. 2d 457 (Fla. 2d DCA 1987); Brewer v. State, 502 So. 2d 1367 (Fla. 2d DCA 1987); Dona…
  • Brooks v. State, 509 So. 2d 364 (Fla. 1st DCA 1987)
    …ad v. State, supra. If, on remand, the trial court decides to depart from the guidelines, it may not use the appellant’s status as an habitual offender as a reason, but must state other clear and convincing reasons for departure. See Avery v. State, 505 So. 2d 596 (Fla. 1st DCA 1987). No issue has been raised by the appellant with respect to the validity of the judgments. Judgments affirmed, sentences reversed and remanded for resentencing. SHIVERS and THOMPSON, JJ., concur.…
  • Graves v. State, 548 So. 2d 801 (Fla. 1st DCA 1989)
    …alm Beach Aviation v. Kibildis, 423 So. 2d 1011 (Fla. 4th DCA 1982). Appellant argues further that the trial court erred in sentencing him as a habitual offender. The state concedes that the trial court’s reason is insufficient. See Avery v. State, 505 So. 2d 596 (Fla. 1st DCA 1987) (merely reiterating the words of the statute insufficient to justify imposing an enhanced sentence under section 775.-084(4)(a), Florida Statutes). Accordingly, the sentence must be vacated and the cause remanded for resentencing…

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