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James Terry v. State of Florida


MR. CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE TUESDAY ORAL ARGUMENT CALENDAR OF THE FLORIDA SUPREME COURT. THE FIRST CASE ON THE COURT'S CALENDAR IS TERRY VERSUS STATE. MS. RYAN.

GOOD MORNING, JUDGES. MRS. JOLLEY. MAY IT PLEASE THE COURT. I REPRESENT THE PETITIONER JAMES TERRY. BACK IN FEBRUARY OF 1996, MR. TERRY PLEADED GUILTY TO A SECOND-DEGREE FELONY, AGGRAVATED BATTERY. IN EXCHANGE FOR HIS PLEA, THE STATE ENGAGED IN SENTENCING NEGOTIATIONS. THE ONLY AGREEMENT WAS THAT MR. TERRY WOULD SERVE NO MORE THAN 54 MONTHS IN PRISON. THAT TERM OF MONTHS WAS ARRIVED AT, BECAUSE IT WAS THE EXACT MIDPOINT OF THE PERMITTED SENTENCES UNDER THE GUIDELINES. THERE WERE NO FURTHER NEGOTIATIONS. IT WAS LEFT ENTIRELY UP TO THE COURT WHETHER PROBATION WOULD BE ADDED IN ADDITION. IT WAS LEFT ENTIRELY UP TO THE COURT, WHETHER A HABITUAL OFFENDER DESIGNATION WOULD BE ADDED.

SO WHAT DOES THAT MEAN, WHEN YOU LEAVE IT UP TO THE COURT? YOU ARE AGREEING TO WHATEVER THE COURT DECIDES. CORRECT?

CORRECT, JUDGE.

OKAY.

BUT IN MARCH '96, THE STATE, AT SENTENCING, ARGUED BOTH FOR PROBATION AND HABITUAL OFFENDER DESIGNATION. THE DEFENSE ARGUED AGAINST IT. THE DEFENSE ARGUED MR. TERRY HAD NEVER SEEN THE INSIDE OF A PRISON. HE BARREL QUALIFIES. HE HAS GOT TWO PRIOR DISTINCT FELONIES. ONE HE GOT JILL -- JAIL AND ONE HE GOT PROBATION. THIS IS NOT A CASE WHERE HE QUALIFIED FOR HABITUALIZATION.

DID HE QUALIFY?

YES. HE HAD TWO PRIOR DISTINCT FELONIES.

DID THE STATE ARGUE THAT?

YES. THE STATE ARGUED FOR BOTH AND THE JUDGE AGREED THAT THE 54 MONTHS IN PRISON TO BE FOLLOWED BY PROBATION WITH A HABITUAL OFFENDER DESIGNATION. AS WE KNOW, MR. TERRY SERVED 85 PERCENT OF HIS 54 MONTHS.

LET ME STOP YOU THERE. WHAT DID THAT MEAN, FROM THE DAECHTS POINT OF VIEW, THAT IS -- FROM THE DEFENDANT'S POINT OF VIEW, THAT IS THAT THE SENTENCE INCLUDED A HABITUAL OFFENDER DESIGNATION?

IN 1996, AFTER 1995, IT WAS ONLY SIGNIFICANT TO HIM INSOFAR AS IT AFFECTED THE TIME HE COULD GET AFTER VIOLATING PROBATION. BEFORE OCTOBER 1, '95 --

LET ME ASK, DID THE JUDGE IMPOSE THE HABITUAL DESIGNATION AT THE TIME OF THE SENTENCE? DID THE DEFENDANT KNOW WHAT SENTENCE HE WAS GOING TO GET?

AT THE TIME OF SENTENCING IN MARCH '96. IN FEBRUARY THE PLEA WAS LEFT OPEN AND THE PARTIES WERE GOING TO ARGUE BOTH WAYS ON HABITUALIZATION AT THE MARCH SENTENCING. YES, IT WAS CLEAR THE JUDGE IMPOSED A HABITUAL OFFENDER SENTENCE.

SO WHEN HE ENTERED HIS PLEA, HE KNEW HABITUALIZATION WAS POSSIBLE. IS THAT WHAT YOU ARE SAYING?

YES. POSSIBLE. BUT HE DID NOT AGREE TO HABITUALIZATION.

WHAT DIFFERENCE DOES THAT MAKE?

THE DIFFERENCE IT MAKES IS THAT, OKAY, OUR POSITION IS THAT ACCORDING TO THIS COURT'S CASES. JOHAGENV STATE AND RINKENSV STATE -- RINKENS V STATE, HE CAN'T BE SENTENCED AFTER A HABITUAL OFFENDER DESIGNATION.

WHAT DID IT MEAN, WHEN HE DECIDED TO DO WHATEVER THE JUDGE WANTED TO DO?

HE PLEADED TO THE COURT. HE DIDN'T REALLY HAVE AGGRESSIVE PLEA NEGOTIATIONS UNDERTAKEN ON HIS BEHALF. THE DEFENSE ATTORNEY GOT HIM A CAP ON THE NUMBER OF YEARS BUT COULDN'T GET A BETTER DEAL. OUR POSITION IS THAT, IN KING, THIS COURT SAID WHERE DEFENDANT AGREES TO A HYBRID SENTENCE, AS OTHERWISE PART OF A PLEA AGREEMENT, THEN A HYBRID SENTENCE CAN BE IMPOSED BUT ONLY THEN. IF YOU READ KING WITH JOHANKEN AND RANKIN, THEN THIS WOULD BE A HYBRID SENTENCE.

WHY WOULDN'T THAT BE A HYBRID CASE?

BECAUSE THE CORDOMAN WAS DECIDED IN KING. THIS COURT, IN THAT CONTEXT, HELD THAT A DEFENDANT CAN AGREE TO A DEPARTURE SENTENCE, BUT THE AGREEMENT HAS TO BE PART AND PARCEL OF THE PLEA AGREEMENT, AND IN A WHOLE LINE OF CASES THAT IS BUILT UP IN THE DCA'S, DETERMINING WHAT IS AND IS NOT PART AND PARCEL OF THE PLEA AGREEMENT, YOU HAVEN'T SEEN THOSE CASES AGAIN, BECAUSE THERE IS A PRETTY COHESIVE, COHERENT SCHOOL OF CASES THAT DECIDE WHAT IS PART OF THE PLEA AGREEMENT.

BUT AREN'T WE MISSING SOMETHING HERE? THAT IS ARE WE MISSING SOMETHING  SOMETHING? THAT IS I THOUGHT THAT, AS YOU OUTLINED WHAT OCCURRED HERE, YOU SAID THERE WAS AN OPEN PLEA AGREEMENT, WHEREBY THE COURT COULD IMPOSE THE HABITUAL OFFENDER STATUS AND SENTENCE.

CORRECT.

AND THE DEFENDANT AGREED TO THAT PLEA. OKAY. BASED ON THAT. AND THEN THE COURT DID, IN OPEN COURT, IN AN OPEN DISCUSSION, IMPOSE THE HABITUAL OFFENDER SENTENCE, SO WHAT IS MISSING FROM THE DEFENDANT NOT AGREEING? IN OTHER WORDS IF I UNDERSTAND WHAT YOU HAVE OUTLINED TO US, THE DEFENDANT DID AGREE. THAT IS WHAT ARE WE MISSING, THEN?

WELL, HE DID NOT MOVE TO WITHDRAW HIS PLEA, AND THE STATE WOULD HAVE YOU RULE --

NOT ONLY DID NOT MOVE TO WITHDRAW HIS PLEA, BUT HE ENTERED A PLEA, WHICH INCLUDED THE COURT'S AUTHORITY TO IMPOSE THE HABITUAL OFFENDER STATUS AND SENTENCE, AND THE COURT DID SO, WITH EVERYBODY UNDERSTANDING, AS EXPLICIT, AT LEAST AS IT IS ON THIS RECORD, THAT WAS PART OF THE PLEA AGREEMENT, IN TERMS OF IT BEING AN OPEN PLEA, AND THE COURT COULD DO THAT IS, SO THE COURT DID JUST WHAT EVERYBODY UNDERSTOOD THAT THE COURT DID DO AND SO I GUESS WHAT ARE WE MISSING HERE, AS AN ESSENTIAL COMPONENT THAT, IS NECESSARY, UNDER OUR PRIOR CASE LAW? I AM HAVING DIFFICULTY SEEING THAT THIS ISN'T AGREED-UPON PLEA THAT INCLUDED THE RISK OF HABITUALIZATION, AND INDEED IN THIS PARTICULAR CASE, THE RISK CAME TRUE, AND WHAT ARE WE MISSING THEN?

JUDGE, THE RISK WAS THERE. AN OPEN PLEA LEAVES OPEN ALL KINDS OF RISKS AND ALL KINDS OF POSSIBILITIES.

THE RISK OCCURRED. RIGHT?

IT DID.

AND IT OCCURRED IN OPEN COURT AND EVERYBODY TALKING ABOUT IT, AND THAT WAS, SO WHAT IS MISSING FROM THE REQUIRED FORMULA HERE? SURELY NOT THE DEFENDANT'S AGREEMENT, BECAUSE THE DEFENDANT AGREED TO THIS.

JUDGE, MY UNDERSTANDING IS THAT, UNDER THIS COURT'S CASE LAW, YOU NEED AN AFFIRMATIVE AGREEMENT NOT JUST POSSIBILITY HANGING OUT THERE. THE CASES THAT HAVE CONSTRUED CORDOMAN HAVE CONSTRUED THAT, ONE CALLED VALENTINE FROM THE FIFTH DCA.

YOU MEAN WE HAVE HAD A CASE LIKE THIS BEFORE, WHERE THE DEFENDANT ENTERED INTO THE OPEN PLEA THAT INCLUDED THE POSSIBILITY OF HABITUALIZATION. THERE WAS HABITUALIZATION, AND THEN WE SAID, NO, THERE IS SOMETHING FLAWED IN THAT, AND THAT IS WHAT?

THIS COURT HAS NOT REVISITED THE QUESTION SINCE KING IN '96, SO, NO, THIS COURT HAS NOT HELD THAT AN OPEN PLEA COMPRISES AN AGREEMENT. I AM SUBMITTING, BY ANALOGY, THAT IN CORD AMEN, THE GUIDELINES CASE HAD TO DO WITH DEPARTURES. I AM SUBMITTING THIS COURT HAD A CLEAR, READILY ENFORCEABLE BRIGHT LINE. THIS COURT SAID IT HAS TO BE AN INTEGRAL PART OF THE PLEA AGREEMENT, TO AGREE WITH AN UPWARD DEPARTURE. I SUBMIT THAT YOU WOULD BE OPENING A CAN OF WORMS, WHICH I WILL GO INTO FURTHER ON REBUTTAL IF YOU DO NOT STICK TO CORD A MAN. THE AGREEMENT HAS TO BE AFFIRMATIVE.

YOUR WHOLE DOES NOT INCLUDE ALL THE PARTS. IF HE AGO GREASE TO AN OPEN PLEA UNDERSTANDS THAT HE CAN BE HABITUALIZED, AND THAT IS WHAT HAPPENS TO HIM, HASN'T HE DEGREED TO THAT?

JUDGE, I SUBMIT THAT WHAT YOU ARE GOING TO GET, IF YOU HOLD THAT AN AGREEMENT CAN BE INFERRED, IS, FOR ONE THING IN A CASE LIKE THIS, THE DEFENDANT IS GOING TO GET EVERY WORD HE SPOKE WITH THE COURT TRANSCRIBED, FROM THE BOND HEARING TO THE FINAL VIOLATION OF PROBATION, AND THEN THE APPELLATE COURTS ARE GOING TO BE IN A POSITION OF WEIGHING THE ENTIRE RECORD, TO SEE IF THE DEFENDANT, AS A WHOLE, HIS FAILURE TO WITHDRAW HIS PLEA, CAN INFER AN AGREEMENT. I SUBMIT THAT CORDAMEN IS MUCH SIMPLER AND SAYS YOU HAVE TO GO ON THE RECORD AND AGREE TO THE DEPARTURE AND IT IS NOT THERE, SO I WOULD SUGGEST THAT IT CANNOT BE ENFORCED.

ASSUMING THAT THIS IS, IN FACT, A VALID PLEA AGREEMENT AND HE AGREED TO THE HABITUAL OFFENDER, THEN WALKER AND DUNHAM CONTROL, IS THAT CORRECT?

YES, JUDGE, I WOULD AGREE. I WILL RESERVE MY TIME.

MS. JOLLEY.

GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS MARY JOLLEY. I AM ASSISTANT STATE ATTORNEY REPRESENTING THE STATE IN THIS CASE. I WOULD SUBMIT THAT, IF YOU LOOK AT THE RECORD IN THE PLEA AGREEMENT, IT SPECIFICALLY STATES THAT THE MAXIMUM SENTENCE HE COULD RECEIVE IS 30 YEARS AS HABITUAL OFFENDER. IT LEFT THE HABITUAL TREATMENT UP TO THE DISCRETION OF THE SENTENCING JUDGE AT SENTENCING. AT THE PLEA HEARING, THE TRIAL COURT WENT THROUGH THIS WITH HIM AND EXPLAINED TO HIM I COULD SENTENCE YOU TO 30 YEARS AS HABITUAL OFFENDER. THIS AFFECTS YOUR GAIN TIME. THEY GO THROUGH PAGE 7 AND 8 OF THE PLEA HEARING AND AGAIN ON PAGE 11 OF THE PLEA HEARING. HE REITERATES IT AGAIN AT SENTENCING, AND THE TRIAL COURT SPECIFICALLY SENTENCED HIM AS A HABITUAL OFFENDER AND GAVE HIM 54 MONTHS. THIS CASE IS CONTROLLED BY KING AND DUNHAM AND WALKER. THERE IS AN EXPLICIT AGREEMENT HERE. THE RECORD PLAINLY DEMONSTRATES THAT, AND I THINK WHAT IS INTRESTING TO NOTE IS THAT DONE HAM, AND THE FACTS BEFORE THIS COURT HAS INDICATED, IT EVEN SAYS IN DUNHAM HE WAS SENKTSED TO PFEIFFER YEARS IN PRISON -- HE WAS SENTENCED TO FIVE YEARS IN PRISON AND HE COULD BE SENTENCED AS A HABITUAL OFFENDER SO IN DUNHAM HE TOLD HIM, LISTEN YOU COULD GET THIS AND YOU ARE GOING TO GET IT. WE HAVE FACTS WHERE THE TRIAL COURT SPECIFICALLY SENTENCED HIM AS A HABITUAL OFFENDER AND SENTENCED HIM TO 54 MONTHS. HE WAS AWARE OF IT.

THE APPELLANT'S ARGUMENT, HOWEVER, SEEMS TO BE THAT, UNLESS THE DEFENDANT EXPLICITLY SAYS I AGREE TO A SENTENCE AS, TO BE SENTENCED AS A HABITUAL OFFENDER, AND I UNDERSTAND THAT IF MY PROBATION IS REVOKED, THAT I CAN RECEIVE THIS HABITUAL OFFENDER SENTENCE, UNLESS HE AFFIRMATIVELY SAYS THAT, THEN THIS IS NOT A PART OF THE PLEA AGREEMENT. HOW DO YOU RESPOND TO THAT?

I RESPOND TWO WAYS, YOUR HONOR. FIRST OF ALL, HE SIGNED A WRITTEN PLEA AGREEMENT TELLING THEM THAT HE HAVE -- TELLING HIM THAT HE WAS SUBJECT TO THE PLEA AGREEMENT. HE WAS TOLD ABOUT THE HABITUAL OFFENDER SENTENCE AND HE WAS EXPLAINED THIS MEANS YOU SPEND A LOT MORE TIME IN PRISON THAN HE NORMALLY WOULD BECAUSE OF THE GAIN TIME FOR HABITUAL OFFENDER. YOU EXPLICITLY KNOW THAT, YOU AGREE WITH THAT? HE SAYS YES, SIR. SO HE HAVE A COLLOQUY WITH THIS DEFENDANT HERE. I JUST CAN'T SEE -- THIS IS PICTURE PERFECT, SRS WE ARE CONCERNED. HE -- AS FAR AS WE ARE CONCERNED. HE ENTERED A PLEA BARGAIN AND GOT 54 MONTHS. HE WAS SPECIFICALLY TOLD YOU GOT 54 MONTHS, WITH A VIOLATION, IF YOU GET OUT, YOU GOT THE END OF THE SENTENCE. HE ENTERED THAT PLEA AGREEMENT BARGAIN WITH THAT UNDERSTANDING.

WHAT DOES A JUDGE HAVE TO FIND, TO FIND HABITUAL OFFENDER STATUS?

THEY HAVE TO DO TWO THINGS. THEY HAVE TO SEE IF HE QUALIFIES AND THEN THEY HAVE THE DISCRETION WHETHER TO IMPOSE THE SENTENCE OR NOT. KING SETS FORTH THAT TWO-PRONG INQUIRY THAT A TRIAL JUDGE MUST DO. HE HAS NEVER RAISED ANY ISSUE AS TO THE FACT THAT HE ACTUALLY QUALIFIES. THAT HAS NEVER BEEN AN ISSUE BEFORE, AND I ALSO NOTE HE HAS NEVER MOVED --

WASN'T THAT AN ISSUE, HOWEVER AT THE ORIGINAL SENTENCING?

AT THE ORIGINAL --

WASN'T THERE AT LEAST SOME EQUIVOCATION ABOUT THE ORIGINAL SENTENCING?

HE NEVER RAISED AN ISSUE THAT HE DID NOT QUALIFY. THAT IS UP TO THE DISCRETION OF THE TRIAL COURT, AND THE RECORD SUPPORTS THE FINDING. HE NEVER MOVED TO WITHDRAW HIS PLEA. HE NEVER OBJECTED WHEN HE GOT THE HABITUAL OFFENDER SENTENCE AT HIS SENTENCING HEARING.

HE QUALIFIED, BECAUSE HE MET THE STATUTORY CITE EARIA, THEN THE JUDGE HAS TO FIND WHAT, IN ADD SNIINGS.

AFTER HE QUALIFIES, THEN THE JUDGE STILL HAS THE DISCRETION WHETHER TO IMPOSE THE HABITUAL OFFENDER SENTENCE OR NOT.

AND THAT IS BASED ON A FINDING THAT -- WHAT IS THE FINDING?

ACCORDING TO KING, THE TRIAL JUDGE HAS TO MAKE THE DETERMINATION WHETHER IT IS NECESSARY, FOR THE PROTECTION OF THE PUBLIC, THAT THEY IMPOSE THE HABITUAL OFFENDER SENTENCE.

IS THAT WHAT THE JUDGE FOUND THAT, IT WAS NECESSARY FOR THE PROTECTION OF THE PUBLIC?

BY FINDING THAT HE QUALIFIED AND ADJUDICATING HIM AS THAT, HE MADE THAT FINDING.

DID HE GIVE HIM A GUIDELINE SENTENCE?

NO. HE GAVE HIM A HABITUAL OFFENDER SENTENCE, WHICH COINCIDED WITH THE MIDRANGE OF THE GUIDELINES. HE DID NOT RECEIVE A GUIDELINES SENTENCE HERE. HE RECEIVED A HABITUAL OFFENDER SENTENCE. THEY USED THE GUIDELINES TO COME UP WITH A TEMPLATE OF THE DETERMINATIONTIVE AMOUNT OF TIME.

BUT WHILE HE WAS IN PRISON, IT WAS EXPLAINED TO HIM, THAT GAIN TIME WOULD BE ATTACKED ON TO THE HABITUAL OFFENDER STATUS? <$$?.

CORRECT.

AND BEING A HABITUAL OFFENDER DO THEY WATCH THESE DEFENDANTS MORE CLOSELY BECAUSE THEY ARE A DANGER?

THAT I AM NOT AWARE OF, JUDGE. I DON'T OBJECT.

AND THEN -- I DON'T KNOW.

AND THEN WHAT WAS HIS VIOLATION OF PROBATION?

HIS VIOLATIONS, AGAIN, WERE NOT RAISED BUT WERE FOUND TO BE, BY THE PPT ANSWER OF THE EVIDENCE -- BY THE PREPONDERANCE OF THE EVIDENCE, I BELIEVE HE FAILED TO REPORT AND ADMITTED THAT HE TOOK DRUGS, IN THE PROBATION VIOLATION REPORT.

THERE WAS NOTHING THAT SHOWED AN INCREASED DANGTORY SOCIETY.

NOTHING THAT I AM AWARE OF IN THE RECORD. HOWEVER, IT IS NOT AN ISSUE. THAT IS WITHIN THE TRIAL JUDGE'S DISCRETION IF THEY FIND BY A PREPONDERANCE OF THE EVIDENCE THAT HE VIOLATED AND THEY SO FOUND HERE AND HE NEVER APPEALED THOSE FINDINGS, SO TO ME IT IS NOT RELEVANT. WHAT IS RELY RANT IS -- WHAT IS RELEVANT IS, YOU ENTERED AN AGREEMENT, AND IF YOU VIOLATE, YOU ARE GOING TO GET A MUCH MORE HABITUAL OFFENDER SENTENCE. HE GOT A BREAK WHEN HE GOT 54 MONTHS THE FIRST TIME AND HE QUALIFIED.

NOW, HIS SENTENCE IS HOW MUCH?

HE RECEIVED 15 YEARS AFTER THE V.O.P. AND TEN YEARS' PROBATION WAS HIS SENTENCE, PURSUANT TO THE HABITUAL OFFENDER STATUTE, HE COULD HAVE RECEIVED UP TO 30 YEARS FOR A SECOND-DEGREE FELONY OF AGGRAVATED BATTERY, WHICH IS THE CRIME THAT HE COMMITTED, BUT IT IS OUR POSITION THAT KING, WALKER AND DUNHAM CONTROL HERE, AND THAT THE SECOND DCA IN THE CASE THAT IS THE CONFLICT CASE THAT A ROSE HERE, SIMP-- THAT AROSE HERE, THEY FIND THAT YOU CAN'T AGREE TO SUCH A SENTENCE AND KING STATES OTHERWISE, SO IT IS OUR POSITION THAT, UNDER KING WALKER AND DUNHAM, THE FIFTH DISTRICT COURT OF APPEAL IS RIGHT ON POINT, AND UNLESS THE COURT HAS ANY OTHER QUESTIONS, WE WOULD ASK THAT YOU RESOLVE THE CONFLICT IN FAVOR OF THE FIFTH DCA'S OPINION. THANK YOU.

REBUTTAL?

WHAT IS YOUR POSITION AS TO WHAT -- IF WE AGREED WITH YOU, UPON THE VIOLATION OF PROBATION, WHAT ADDITIONAL SENTENCE COULD HAVE BEEN IMPOSED?

IT WOULD, IF YOU AGREE WITH US, THEN THE JUDGE WOULD BE LIMITED TO GUIDELINE SANCTIONS. HE COULDN'T GIVE HIM -- HE WOULD BE LIMITED TO 15 YEARS MINUS 54 MONTHS. TOTAL. INCARCERATION AND PROBATION, AND INSTEAD HE GOT AN ADDITIONAL 15 YEARS PLUS TEN YEARS' PROBATION, SO THE JUDGE ENDED UP USING ALMOST THE ENTIRE 30-YEAR DOUBLE STATUTORY MAXIMUM, AND IF IT WAS OUR CASE, HE COULD HAVE BEEN LIMITED TO THE 15 YEARS TOTAL.

THE DIFFERENCE WAS HE COULDN'T HAVE GOTTEN THE TEN YEARS' PROBATION AT THE VIOLATION OF PROBATION?

AT THE VIOLATION OF PROBATION HEARING, THERE ONLY REMAINS TEN AND-A-HALF YEARS OF ADDITIONAL SANCTIONS, SO THE COMBINED INCARCERATION AND PROBATION AFTER VIOLATION COULDN'T HAVE EXCEEDED TEN AND-A-HALF YEARS. MR. CHIEF JUSTICE: JUSTICE HARDING.

HE ACKNOWLEDGED, AT THE PLEA HEARING, THAT HE COULD HAVE GOT ENTHE 30 YEARS, IF HE WAS HABITUALIZED, ISN'T THAT CORRECT?

UP-FRONT, HAD HE NOT NEGOTIATED A GUIDELINE SENTENCE, HE COULD HAVE ORIGINALLY GOTTEN THE 30 YEARS. YES.

HE ACKNOWLEDGED THAT, IF HE WAS SUBJECT TO YEARS, IF HE WERE HABITUALIZED, RECOGNIZING THAT HE CAN'T THE GUIDELINE SENTENCE -- THAT HE GOT THE GUIDELINE SENTENCE.

YES, JUDGE, AT SENTENCING. OUR POSITION IS THAT RELYING ON CORDAMEN, NOTHING HE SAID AT SENTENCING COULD ENTER INTO HIS PLEA AGREEMENT. I WOULD SUGGEST THAT IT HAS TO BE EXPLICIT AT THE PLEA COLLOQUY FOR SOME PURPOSES BUT NOT OTHERS  OTHERS.

I THINK I ASKED YOU BEFORE BUT I AM NOT SURE I GOT AN ANSWER. HE WAS SENTENCED AS HABITUAL OFFENDER. HE AGREED THAT THE TRIAL COURT COULD IMPOSE IT. WHAT IS IT, IF IT WEREN'T THAT HE COULD BE POTENTIALLY SENTENCED FOR THE HABITUAL OFFENDER DURATION OF 30 YEARS, WHAT WAS THAT PART OF THE AGREEMENT? IN OTHER WORDS HE LEFT THAT COURTROOM, KNOWING HE WAS HABITUALIZED.

YES, JUDGE, BUT THE KING CASE WAS DECIDED AFTER THAT, AFTER HIS PLEA, AND WE SUBMIGHT THAT KING AFFECTS THE OUT -- AND WE SUBMIT THAT KING AFFECTS THE OUTCOME IN THIS CASE.

BUT WHAT DID HE THINK THAT MEANT THAT HE WAS HABITUALIZED, AND WHAT WAS IT THAT HE THOUGHT WOULD HAPPEN?

JUDGE, WE RELY SOLELY ON A LINE OF CASES STARTING WITH HAGAN. THE COURT CAN TRY TO IMPOSE A HABITUAL OFFENDER SENTENCE BUT FAILED N ALL OF THOSE CASES, THE DEFENDANT IS IN A POSITION OF HAVING TO AGREE TO SOMETHING THAT IS NOT ENFORCEIBLE. THE QUITS ARE NOT WITHIN THAT CASE. WE RELIED ON --

YOU SAID THIS IS AN ILLEGAL SENTENCE?

NO, JUDGE. IT IS A HYBRID SENTENCE WHICH WAS NOT AGREED TO. IT IS NOT AN ILLEGAL SENTENCE, BUT THAT IS THE DISTINCTION THAT WAS DRAWN IN JOHAGEN, RANKIN AND KING, AND THIS COURT HELD THAT THE HYBRID SENTENCES HAVE TO BE ADHERED TO, AND WHAT IT HAS COME DOWN TO IS YOU ARE GOING TO SEW CONFUSION IN THE LAW, IF IT IS ADMITED FOR SOME PURPOSES AND NOT OTHERS. YOU ARE GOING TO HAVE ALL KINDS OF CONTEXTS COMING IN FROM THE RAFTERS, SAYING THIS IS BETWEEN CORDAMEN AND TERRY.

I GUESS WHAT I AM CONCERNED ABOUT, IT SEEMS TO ME THAT THE DEFENDANT GOT -- MAYBE HE DOESN'T THINK HE GOT A GOOD DEAL BUT HE GOT A MORE LENIENT TREATMENT, AND WHAT YOU ARE ARGUING FOR IS THE JUDGE SAID YOU ARE HABITUALIZED, I AM GOING TO GIVE YOU MORE STRICT TREATMENT FROM THE OUTSET. I WON'T BE ABLE TO GIVE AWE BREAK, AND HOW IS THAT A GOOD POLICY TO FOSTER?

JUDGE, I AM IN POSITION OF ARGUING ON MR. TERRY'S BEHALF SOMETHING THAT MAY HAVE NEGATIVE RAMIFICATIONS FOR DEFENDANTS LATER ON, BUT I SUBMIT THAT THE ARGUMENTS THAT I CAN MAKE ARE CONTROLLED BY THE HAGUE AND CASE, WITH WHERE THIS -- BY THE HAGAN CASE, WHERE THIS COURT HELD THAT THE HABITUAL SENTENCE WASN'T LONG ENOUGH. OUR POSITION IS THAT WE CAN SEE THAT THE QUITS ARE NOT WITH US -- THAT THE HE CAN WITTS ARE NOT WITH US, BUT IT CONTROLS HERE, WITH REFERENCE TO KING, BUT EXPLICITLY IF THE DEFENDANT DIDN'T AGREE TO THE HYBRID SENTENCE, THEN IT CANNOT BE ENFORCED AGAINST HIM, AND ACCORDINGLY WE ASK THE COURT TO RESOLVE THE CONFLICT, REVERSE THE FIFTH DCA, VACATE THE SENTENCE AND REMAND FOR THE GUIDELINE SENTENCE. CHIEF CHIEF CHIEF THANK YOU, COUNSEL FOR YOUR ASSISTANCE. IN THIS CASE.