A defendant's classification as a habitual violent felony offender based on a prior violent felony conviction does not violate due process or double jeopardy protections.
An appellant challenges his classification and sentence as a habitual violent felony offender after being convicted of selling cocaine, a non-violent felony, based on a prior conviction for armed robbery. The appellant contends that the sentencing statute violates equal protection, due process, and the constitutional protection against double jeopardy. The court applies existing precedent to address these constitutional challenges. Because the court has previously ruled adversely on each of the appellant's specific arguments, the court affirms the judgment and certifies two questions of great public importance regarding due process and double jeopardy.
Other citing cases
- Simmons v. State, 596 So. 2d 1156 (Fla. 1st DCA 1992).published
- Cecil v. State, 611 So. 2d 584 (Fla. 1st DCA 1992).published
- Hernandez v. State, 592 So. 2d 764 (Fla. 1st DCA 1992).published
v.
STATE of Florida, Appellee.
Nancy A. Daniels, Public Defender, and Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
Leshawn Tillman has appealed his classification and sentence as an habitual violent felony offender pursuant to section 775.084(1)(b), Florida Statutes. Tillman received this sentence for selling cocaine (a non-violent felony), based on a previous conviction of armed robbery (a violent felony). We affirm, but certify two questions as being of great public importance.
Tillman's argument on appeal is that section 775.084(1)(b) is unconstitutional. He contends that it: 1) denies equal protection in that not all who are eligible for habitual violent felony offender status are so sentenced, 2) offends the requirements of due process by its failure to require that the current offense be violent, and 3) violates the constitutional protection against double jeopardy by increasing punishment due to the nature of a prior offense. This court has ruled adversely to Tillman on each of these issues. See Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied 576 So.2d 284 (Fla. 1990), Ross v. State, 579 So.2d 877 (Fla. 1st DCA 1991), and Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA 1991), respectively. We therefore affirm.
However, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, we certify the following questions to be of great public importance:
1. DOES IT VIOLATE A DEFENDANT'S SUBSTANTIVE DUE PROCESS RIGHTS WHEN HE IS CLASSIFIED AS A VIOLENT FELONY OFFENDER PURSUANT TO SECTION 775.084, AND THEREBY SUBJECTED TO AN EXTENDED TERM OF IMPRISONMENT, IF HE HAS BEEN CONVICTED OF AN ENUMERATED VIOLENT FELONY WITHIN THE PREVIOUS FIVE YEARS, EVEN THOUGH HIS PRESENT OFFENSE IS A NON-VIOLENT FELONY?
2. DOES SECTION 775.084(1)(b) VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY INCREASING A DEFENDANT'S PUNISHMENT DUE TO THE NATURE OF A PRIOR OFFENSE?
Affirmed.
JOANOS, C.J., and SMITH and ZEHMER, JJ., concur.