Sentencing under the habitual felony offender statute is discretionary and not mandatory for the trial court.
A defendant pleads guilty to grand theft and nolo contendere to robbery with a firearm and is sentenced as a habitual felony offender to life imprisonment. The defendant challenges the sentence, arguing that first-degree felonies punishable by life imprisonment are exempt from habitual offender enhancement. Although the court determines that such felonies are subject to enhancement, it must address whether the life sentence is mandatory. Because the trial court failed to indicate whether it exercised its discretion, the court holds that sentencing under the habitual offender statute is permissive rather than mandatory. The case is remanded for reconsideration of the sentence.
Other citing cases
- Davis v. State, 643 So. 2d 79 (Fla. 2d DCA 1994).published
- Willford v. State, 616 So. 2d 196 (Fla. 3d DCA 1993).published
- Crumitie v. State, 605 So. 2d 543 (Fla. 1st DCA 1992).published
- Davis v. State, 599 So. 2d 239 (Fla. 2d DCA 1992).published
v.
STATE of Florida, Respondent.
[*957] James B. Gibson, Public Defender, and Michael S. Becker and Daniel J. Schafer, Asst. Public Defenders, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for respondent.
PER CURIAM.
We review Tucker v. State, 576 So.2d 931 (Fla. 5th DCA 1991), based on conflict jurisdiction.[1]
Tucker pled guilty to grand theft of a motor vehicle and nolo contendere to robbery with a firearm, a first-degree felony punishable by life imprisonment. Tucker was sentenced as an habitual felony offender under section 775.084, Florida Statutes (1989), to ten years for the grand theft and to life imprisonment with a minimum mandatory of three years for the armed robbery. Tucker seeks review of his sentence for the robbery offense, claiming that first-degree felonies punishable by life imprisonment are not subject to enhancement under the provisions of the habitual offender statute.
We decided that issue contrary to Tucker's position in Burdick v. State, 594 So.2d 267 (Fla. 1992). However, we also held in Burdick that sentencing under the habitual offender statute is permissive, not mandatory.
In this case, the State argued at sentencing that a life sentence is mandatory under section 775.084(4)(a)(1). In sentencing Tucker, the trial court did not indicate whether it believed it could in fact decline to impose a life sentence.
Accordingly, we approve the opinion below but remand for the trial court to reconsider Tucker's sentence in light of our determination in Burdick that sentencing under the habitual offender statute is discretionary.
It is so ordered.
SHAW, C.J., and McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.
OVERTON, J., dissents.