CHIEF JUSTICE: THE NEXT CASE ON THE CALE NDAR IS RICHARDSON, SO I AM G OING TO BE RECUSED FROM THE C ASE AND WILL LE AVE THE BE NCH AND JUSTICE WELLS WILL PRESIDE.
GOOD MORNING , MA Y IT PLEASE THE COURT . DAN HINDMAN ON BEHALF OF T HESTATE OF FLORIDA. WE ARE HERE ON THE McCALL DECISION OUT OF THE SECOND DISTRICT, AND I WOULD ADD THAT ALL OTHER DISTRICT COURTS HAVE , NOW , CERTIFIED CONFLICT WITH THE IN STANT DECISION. WE ARE REQU ESTING THAT IT BE QUASHED AND THAT CONFLICT BE RESOLVED, IN F AVOR OF McCALL , AND THE OTHER DECISIONS .
HOW DOES IT FACTOR INTO THE ANALYS IS THAT THIS I S O N AEAL F RO M A POSTCONVICTION MOTION ? DOES THE FOURTH DISTRICT SEEM TO IG NORE THAT PART OF THE CASE ?
WELL , WHAT WE ARE LOOKING AT, IT IS ST ILL A DE NO VO REVIEW.
IT DIDN'T SEEM TO USE STRICKLAND STANDA RDS , BECAUSE WHAT THE DEFENDANT WAS SAYING IS THAT HIS LAWYER WAS INEFFECTIVE FOR NOT MAKING THIS AR GUMENT A T TRIAL. AND SO IT SEEMS LIKE YOU WOULD HAVE TO GO THROUGH A DEFICIENT PERFORMANCE PREJUDICE ANALYSIS, WHICH THE COURT DID NOT UNDERT AKE.
IT DID AEAR THE ME RITS SUCH AS THEY WERE , WITH THE PRO SE AELL ANT , THAT IS TRUE, IF WE WERE TO TAKE A LOOK AT STRICKLAND, OF COURSE, OUR PO SITION IS THAT THE ARG UMENT I S MERITLESS . THOSE ARE THE REASONS T HAT WE HAVE ARGUED THAT THERE WOULD CERTAINLY BE NO DEFICIENT PERFORMANC E.
THE RULING IN YOUR FAVOR WOULD MOVE THE UNDERL YING ISSUE OF BEING INEFFECTIVE AS COUN SEL .
NO R E MAND IS NECESSARY, EVEN IF YOU WIN THIS AEAL. IS THAT WHAT YOU ARE SAYING?
I DON'T BELIEVE THAT REMAND, WELL, IT WOULD H AVE TO BE REVERSED , AND --
THERE WERE OTHER INEFFECTIVENESS CLAIMS, RIGHT? THIS WAS NOT THE ONLY CLAIM W ITH INEFFECTIVE ASSISTANCE.
HE RAISED OTHER CLAIMS WITH INEFFECTIVE ASSISTANCE CLAIMS, THE CLAI MS THAT WE ARE DISCUSSING TODAY AND ALSO SOME EVIDENTIARY QUESTIONS THAT WERE RAISED AS WELL .
DO YOU HAVE TO DETERMINE THOSE ON O R REMAND FOR THE FOURTH DISTRICT TO DETERMINE?
I WOULD LOOK AT THE FACTS THAT, NO, I WOULD NOT T HINKSO. THE FACT THAT THE FOURT H DISTRICT PASSED OVER THO SE , I THINK IT WAS BIND ING BY THE FOURTH DISTRICT A NDTHERE WAS NO INEFFECTIVE ASSISTANCE OF COUN SEL. AS TO THE EVIDENTIARY ISSUES --
THE OTHER WAY TO INTERPRET IT IS THAT THOSE CLAIMS BECAME MOOT BECA USE A NEW TRIAL WAS AL READY NE EDED BECAUSE OF THIS ISSUE.
NO. THERE IS JUST A NEW SENTENCING THAT WOULD BEREQUIRED. THE CONDITION STILL STAN DS , WHETHER HE SER VE S IT OR HE SERVES IT AS A HABITUAL OFFENDER OR AS IT STANDS, I BELIEVE THAT IS THE ONLY QUESTION BEFORE THE COURT.
IS THERE ANY INDICATION IN THE FOURTH DCA OPINION THAT THEY IMPLICITLY R ULEDON THIS? DID THEY SAY DEN THEM O R ANYTHING LIKE THAT? -- DID THEY SAY DENY THEM O R ANYTHING LIKE THAT?
NO. BUT I THINK THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THESE TRIALISSUES, EVIDENTIARY ISS UES. THAT WOULD HAVE BEEN REMANDED FOR REHEARING ON THAT. THE CONVICTION, IT SELF , JUSTICE CA NTERO , STOO D, A NDTHE FACT THAT THE FOURTH PASSED ON THE CONVICTION, ITSELF, I BELIE VE THERE WAS IMPLICIT STRICKLAND ANALYSIS. YES. IT MAY HAVE BEEN HELP FUL I F THAT WAS ACTUALLY IN THE OPINION, ITSELF , BUT IT WASN'T, BY THE FACT THAT THE CONVICTION, ITSELF , WAS SUSTAINED BY THE FOURTH DCA. I BELI EVE THAT THERE WAS IMPLICIT ANALYSIS GOING ON THERE. I BELIEVE THE ONLY QUESTION BEFORE THIS COURT , IS THE FOURTH DISTRICT'S READING OF 775.084.
DOUBTFUL THAT THE STRONGEST POINT YOU HAVE TO MAKE IN THIS COURT -- DO YOU FEEL THAT THE STRONGEST POINT YOU HAVE TO MAKE IN THIS COURT IS THE CONTENT OF SUBSECTION 2?
YES, JUSTICE ANST EAD . THE PLAIN LANGUAGE O F SUBSECTION 2 , IT DEFINITELY CLAIMS THAT THE ACTUAL PLACING OF A PERSON ON PROBATION OR COMMUNITY CONTROL , S HALL BE TREA TED A S A PRIOR CONVICTION .
WHAT WERE THE ACTUAL DATES HERE, AS FAR AS WAS IT A MATT ER OF SIX MONT HS OR WHAT? IT WAS THE SAME YEAR, WAS IT NOT? SIX MONTHS.
NOT , IN THE I N STANT CONVICTION.
I AM TALKING AB OUT DUE PROCESS.
YES, JUSTICE ANSTEAD. THE FIRST ONE WAS ACTUALLY APRIL 14 , 1 993.MR. RICHARDSON WAS CONVICTED OF POSSESSION OF CO CAINE . HE WAS GIVEN TWO YEAR S' PROBATION.
HE WAS ADJUDICATED GUILTY.
HE WAS ADJUDICATED GUILTY. AROXIMATELY 6 MONTHS LATER ON SEPTEMBER 2 3 , 1993 , THE RESPONDENT WAS CONVICTED AFTER GRAND THEFT A NDVIOLATION OF PRO BATION ON THE POSSESSION CHARGE, A NDHE WAS SENTENCED TO 15 MONTHS IN THE DEPA RTMENT OF CORRECTIONS.
HOW DID THE FOURTH DISTRICT DISTINGUISH THE ALICABILITY AND THE PROVISIONS OF SUB SECTION 2?
WELL , I REALLY DON'T THINK THEY DID. THEY DISC USSED SUBS ECTION 2 , BUT THEY INTERPRETED IT I N SUCH AWAY THAT THEY REQUIRED AN ACTUAL VIO LATION OF PROBATION, BEFORE THEY WOULD EVEN CONSIDER THE SUBSECTION, AND THAT IS CLE ARLY CONT RARY TO THIS SUBS ECTION. THE SUBSECTION SAYS THAT IT IS THE P L ACING OF THE DEFENDANT ON PROBATION , THAT TRIGGERED THE PRIOR CONVICTION .
YOU SAID -- BUT THE SECTION 2, DOE S IT REALLY ANSWER THE QUESTION THAT HE HAVE HERE? SECTION 2 REALLY SAYS THAT , SOMEONE WHO I S ADJU DICATED , IS A CONVICTION , CORRECT?
YES.
BUT DOES IT ANSWER THE QUESTION OF WHETHER OR NOT, WHEN YOU ARE PLACED ON PROBATION, THAT IS A SENTENCE. THAT IS THE REAL QUESTION. THAT IS BEFORE THE COURT. THAT IS NOT WHETHER OR NOT HIS PRIOR RUL INGS OF THE COURT WAS HIS CONVICTION , I THINK WE CAN ACCE PT THAT , BUT WHEN HE WAS PLACED ON PROBATION, WAS THAT A SENTENCE? THAT IS THE REAL QUEST ION. SO HOW DO YOU GET AR OUND THE CASE LAW THAT TALKS ABOUT PROBATION ISN'T REALLY A SENTENCE, ISN'T TECHNICALL Y A SENTENCE? HOW DO YOU GET T O A POINT OF SAYING THIS CONTEXT , IT IS A SENTENCE.
BECAUSE IF WE DON'T INTERPRET IT, THAT SEC TIONHAS NO MEANING WHATSO EVER. BECAUSE WE HAVE SECTION 5 , WHICH IS A SEP ARATE SENTENCING REQUIREMENT, WHICH WAS IMPLEMENTED BY THE LEGISLATURE AFTER THIS COURT 'S BARNES DECISION IN 1993. WHAT THE COURT, IN SUBSECRETARIES 5 SAYS IT IS MODIFYING SUBSECTION 2, BUT IT REALLY MODIFIES SUBSECTION 2 OUT OF EXISTENCE, IF YOU WILL. SUBSECTION 2 ONLY HAS EFFECT , IF WE COM E TO THE CONCLUSION THAT THE ACTUAL PLAC ING OF THE DEFEND ANT ON PROBATION IS A SENTENCE, BECAUSE IF NOT , THEN IT IS AL WAYS GOING TO ROUGH OUT OF THE SEPA RATE SENTENCING REQUIREMENT, A NDIT IS T RUE , AS YOU SAID , THERE ARE CASES FRO M THIS COURT AND THE DISTRICT COURT , THAT PROBATION AND A SENTENCE OF INCARCERATION, ARE TRE ATED AS DISTI NCT CONCEPTS, BUT THERE ARE ALSO A NUMBER OF CASES IN THIS COURT AND , CORE , LA RSON AND LIMAN, THAT SAYS THAT PROBATION, OF COUR SE, IS ONE OF THE FIVE B ASIC ALTERNATIVES IN FLO RIDA TO SENTENCING, AND WE HAVE TO LOOK AT HOW , WHAT DOES SENTENCING MEAN IN THE CONTEXT OF HABI TUAL OFFENDER SENTENCING, AND BASED ON SUBSECTION 2, CONSIS TENT READING WITH SUBSECTION 5 , MUST LE AD TO THE CONCLUSION THAT THE PLACING OF THE DEFENDANT ON PROBATION , TRIGGERS A SENT ENCING EV ENT. OTHERWISE THE SUBSECTION HASNO MEANING WHATSO EVER.
THERE IS NO OTHER AREA IN THE HABITUAL OFFENDER STATUTE THAT SUBSECTION 2 WOULD HAVE ANY REAL MEA NING , IF IT IS NOT A PART OF SUBSECTION 5.
SUBSECTION 5 RX THE WAY I T IS INTERPRETED , W IT H ALL DUE RESPECT, MISINTER PRETED BY THE FOURTH DCA , WI PED OUT SUBSECTION 5. I CAN FIND NO O THERSIGNIFICANCE TO THAT SUBSECTION THAN IF SUBSECTION 5 IS ALIED T HE WAY IT IS. NOW , THE FOURTH TRIES TO READ AN INTERPRETATION INTO SUBSECTION 2 THAT WOULD MAKE IT CONSISTENT WITH FIVE , I DO NOT FIND IT V ERY COMPELLING, BECAUSE THAT WOULD ACTUALLY REQUIRE A VIOLATION OF PROBATION, BEFORE YOU WOULD EVER GET TO SUBSECTION 2.
SO A CRIM INAL CONVICTION FOLLOWED BY PLACIN G ON PROBATION, COULD NEVER SE RVE AS A PRED ICATE OFFE NSE , THE FOURTH DISTRICT'S RULI NG , EVEN IF THE TERMS OF PROBATION WERE FOR ONE YEAR , WHATEVER, AND THEN THEY COMPLETED THOSE TERMS , IF THEY HAD BEEN ADJUD ICATED GUILTY AND THEN A YEAR LATER , THERE WAS AN OTHER OFFENSE , THAT FIRST OFFENSE , IN SPITE THE LANGUAGE OF SUBSECTION 2 , COULD NEVER BE USED.
IT WOULD MEAN NOTH ING AS A PREDICATE. YEAH.
WELL, IN THIS CASE , I THINK YOU SAID THAT THE DEFENDANT WAS ADJUDI CATED GUILTY.
YES .
SO ISN'T THAT A CONVICTION, EVEN WITHOUT SECTION 2?
YES. IT WOULD BE AND THEN WE HAVE TO LOOK AT IN ORDER TO SATISFY THE SEPARATE SENTENCING REQUIREM ENTS .
ISN'T, REALLY , SUBSECTION 2 IRRELE VANT HERE , BECAUSE SUBSECTION 2 SAYS THE PLACING AFTER PERSON ON PROBATION OR COMMUNITY CONTROL, WITHOUT AN ADJUDICATION OF GUILT, S HALL BE TREATED AS A P RIORCONVICTION. HERE WE HAVE AN ADJUDICATION OF GUILT, SO, REALLY, W E NEED TO DECIDE THIS CASE , BASED ON SUBSECTION 5 AND THE DEFINITION OF CHRONIC OFFENDER BUT NOT SUB SECTION 2.
NO.I BELIEVE SUBSECTION 2 ALIES AND IT DOES HAVE TO ALY --
HOW DOES IT AL Y, IF THERE IS NOT AN ADJUDICATION OF GUILTY.
WHAT THE LEGISLATURE IS DOING THERE IS MAKING IT CRYSTAL CL EAR .
PLACING ON COMMUNITY CONTROL WITHOUT ADJUDICATION OF GUILT , .
YOU KIND OF GET INTO A - -
SO IF WE READ T HEM TOGETHER, THAT IS WHAT I S ADOPTED BY ALL DISTRICT COURTS, WITH THE EX CEPTION OF THE FOURTH DISTRICT.
BUT M cCALL , D I DN'T REALLY GET INVOLVED WITH SECTION 2 T SI MPLY , I N A STRAIGHTFORWARD WAY, HELD THAT PROBATION IS A SANCTION AND THER EFORE , IT IS A BASISFOR THE HABITUAL OFFENDER STATUTE.IS THAT CORRECT?
YES, JUSTICE WELLS.
WOULD YOU GO THRO UGH AND CAPITALIZE ON WHAT YOU BELIEVE TO BE THE PARAMETERS OF THE SEPARATE SENTENCING REQUIREMENT AND THE PURPOSE AND SPEC IFIC LANGUAGE UPON WHICH THE STATE RELIES , TO GET TO , TO TA KE US WHERE WE NEED TO BE IN THIS CASE .
WELL , LE T ME DISC USS THE , I GUESS YOU ARE AS KING F OR DISCUSSION OF SUBSECTION 5 , WHY WE HAVE SUBSECTION 5 , A SEPARATE SENTENCING REQUIREMENT.
IT SEEMS TO ME THAT IS WHAT WE ARE --
YEAH.
I WOULD LIKE TO KNOW WHAT THE STATE'S PARAMETERS ARE AND WHAT IS THE PURPOS E AND WHAT IS THE SPECIFIC WO RDING THAT LEADS YOU TO YOUR PARAMETER DISTINCTION -- PARAMETER DESCRIPTION.
WE HAVE SUBSECTION 5 , WHICH HAS A SE PARATE SENTENCING REQUIREMENT, AND THAT WAS PASSED , BASED O N THIS COURT 'S BAR NES DECISION. THE CONC ERN IN BA NS IS THAT THERE WAS AN INDIVIDUAL WHO WAS BEFORE THE COURT , WITH TWO PRIOR CONVICTIONS. HE QUAL IFIED AS HABITUAL OFFENDER, BUT HE WAS SENTENCED ON THE SAME D A Y AT THE SAME SENTENCING PROCEEDING, AND THEN THE VERY NEXT TIME HE WAS IN COURT , HE WAS BEING TREATED AS HABITUAL OFFENDER , AND WHAT THIS COURT DISCUSSED AT THAT TIME , WAS , W ELL , U N LESS THERE IS AN OORTUN ITY FOR SOMEONE TO RE FORM WITH HIS TWO PRIOR CONVICTIONS , GIVEN TWO CHANCES, IF YOU WILL , THEN WE ARE GOING TO G ET ALOT OF DEF ENDANT QUALIFYING FOR HABITUAL OFFENDER SENTENCING AND POSSIBLY , IMAGINE CLOG GING U P THE CORRECTION SY STEM . SO THE LEGISLATURE THEN T OOK ACTION ON THAT AND ENA CTED SUBSECTION 5 AND GAVE US A SEPARATE SENTENCING REQUIREMENT, WHICH, AS THE PARAMETERS OF THIS CASE , THAT IS DONE. THIS IS, IN THIS CASE , OUR ARGUMENT IS IN THE SP IRIT OF BARNES. THE DEFENDANT, MR. RICHARDSON, HAS BEEN GIVEN TWO OORTUNIT IES TO REFORM. HE WAS PLACED ON PROBATION. THE FIRST TIME . THAT WAS HIS F IRSTOORTUNITY. HE VIO LATED PROBATION SHORTLY THEREAFTER. THAT WAS THE SECOND OORTUNITY, AND THE ROBBERY AND THE IN STANT OFFENSE , THAT WAS HIS T HIRDOORTUNITY.HE WAS BEFORE THE COURT THREE SEPARATE TIM ES FOR SENTENCING. THE CONCERN WITH BAR NES WAS THAT A PERSON WOULD NOT B E IN FRONT OF A COURT THE REQUISITE NUMBER OF TIMES ENVISIONED BY THE LEGISLATURE BEFORE HE IS HIT WITH HABITUAL SENTENCE. THAT IS WHY OUR ARGUMENT IS CONSISTENT WITH SUBSECTION 5 , UPHOLD SUBSECTION 5, UP HOLDS THE SPIRIT OF BARNES.
SO YOU ARE SAYING THAT ESSENTIALLY WHAT THE LEGISLATURE HAS INTENDED ISTHAT THE DEFENDANT HAS BEEN CONVICTED FOR THREE SEPARATE INCIDENTS AND NOT THREE SEPARATE CRIMES AR ISING FR OM ONE IN CIDENT.
I BELIEVE THAT IS A FAIR READING , JUSTICE CA NTERO .
DO YOU BELIEVE THAT IS A FAIR READING OF BARNE S?
WELL , BARNES WE LOOK AT THE OR IGIN O F SUBSECTION 5. IN A SENSE BARNES GIVE BIRTH TO SUBSECTION 5 BUT IN A WAY WAS OVERRULED BY SUBSECTION 5, SO WHAT THE COURT WA NTS TO SEE IS THREE , OR TWO PRIOR SENTENCING EVENTS. THAT IS WHAT IT COMES DOWN TO. TWO PRIOR SENTENCING EVENTS.
YOU KEEP TALKING ABOUT SENTENCING EVENTS . BARNES ACTUALLY SAYS , WHILEWE AGREE THAT THE UNDER LYING PHILOSOPHY O F HABITUAL OFFENDER STAT UTE MAY BE BETTER SE RVED BY A SEQUENTIAL CONVICTION REQUIREMENT , WE AGREE THAT THE DISTRICT COURT , THAT THE CURRENT STATUTE IS CL EAR AND UNAMBIGUOUS AND CONTAINS NO SEQUENTIAL CONVICTION REQUIREMENT . I AM TALKING ABOUT A CONVICTION REQUIREMENT AS OOSED TO A SENTENCING REQUIREMENT. ARE THEY NOT?
I WOULD HAVE TO LOOK A T BARNES AGAIN. WHAT I TAKE FROM BARNES , THOUGH, WHAT THIS COURTWANTED TO DO IN BARNES WAS TO GIVE THE DEFENDANT THE OORTUNITY TO REFORM.THAT IS THE WHOLE SPIRIT O F BARNES, GIVE HIM AN OORTUNITY TO REFORM, BEFORE HE IS HIT WITH A HABITUAL SENTENCE. AND WHAT WE GOT WAS OBVIOUSLY SUBSECTION 5 RIG HT FROM THAT. WITH PERM ISSION OF T HIS COURT, I WOULD LIKE TO RESERVE MY REMA INING T IME FOR MILE R E BUTTAL ARGUMENT .
MA Y IT PLEASE THE COURT. I AM JOE LANG FROM CAR LTON FIELDS AND I AM HERE REPRESENTING E RIC RICH ARDSON AND AT COU NSEL TABLE WITH M E ARE JOHN BLUE AND KRI STIN DEAN.
MR. LANG, WOULD YOU ADDRESS THIS LAST DISCUSSION WE HAVE HERE , THE , WITH REGARD TO THE S COPE OF WHAT BARNES REALLY MEANS AND PARAMETERS OF THE SUBSECTION , AND YOUR TAKE ON THAT , ASFAR AS THE PARAME TERS AND THE WORDING THAT WE RE LY ON FOR THE LAST THREE OR FOUR QUESTIONS THAT WE HAVE BEEN DISCUSSING.
YES, YOUR HO NOR. THE BARNES DECISION, IT IS NOT CRYSTAL CLEAR AS TO WHAT IT WAS MEANING , BUT WHAT IS CRYSTAL CLEAR IS SUBSECTION 5, AND SUBSECTION 5, THE LEGISLATIVE HISTORY, FIRST OF ALL, WHI CH YOU CAN FIND IN OUR BRIE F, I BELIEVE, ON PAGE 23 , AND IT MAKES IT VERY CLEAR THAT, WHAT THE LEGISLATURE WAS DOING IN RESPONSE TO THE BARNES CASE , WAS, IN ORDE R TO B E COUNTED AS A QUALIFYING PRIOR FELONY , THE FELO NY M UST HAVE A RERESULTED IN A CONVICTION , SENTENCED SEPARATELY, PRIOR TO THE CURRENT OFFENSE AND SENTENCED SEPARATELY FROM EACH OTHER FELONY.
SO YOU ARE TAKING FROM THAT, THE LEGISL ATIVE HISTORY THAT TALKS ABOUT A SENTENCING PRIOR, BECAUSE IT SEEMS AS THOUGH THE STATUTE USES THE WORDS "SEPARATE SENTENCING". IT DOESN'T US E THE WORD "PRIOR" DOES IT?
I BELIEVE THAT IT HAS TO BE SEPARATE SENTENCING .
RIGHT.
MAYBE NOT PRIOR BUT THEY HAVE TO BE SEPARATE. AND IN THIS CASE --
SEPARATE WITH REGA RD TO THE PROCEEDING OR SEPARATE WITH REGARD TO THE EVENTS?
I BE LIEVE IT IS SEPARATE AS REGARD TO THE PRO CEEDING .
AND WHAT DO YOU REL Y ON FOR THAT, BECAUSE THAN K IS REALLY WH ERE OUR BATTLE HERE IS BEING DISCUSSED . WHAT DO YOU DRAW THAT FROM , SEPARATE WITH REGARD TO PROCEEDING, AS WITH REGARD , AS OOSED TO SEPARATE WITH REGARD TO EVENTS OR OFFENSE ?
I BELIEVE THAT, FOR THE SENTENCING, THE B OVER VERSUS STATE CASE GIVES SUP PORT TO THE FACT THAT YOU HAVE TO BE SEPARATE PROCEEDINGS. YOU CAN ACTUALLY OPEN ONE UP, DO IT, AND THEN DO A SEPARATE ONE RIGHT AFTER.
ON THE SAME DAY.
RIGHT.
WHILE YOU THERE ARE BUT IF THEY ARE ALL AT ONE TIME .
AND I THINK IT I S IMPORTANT THAT THEY HAVE TO BE SEPARATE PROCEEDINGS , AND THAT IS JUST , WELL , TO BE PERFECTLY HONEST, WE DON'T KNOW FOR SURE THAT , WHAT HAENED HERE, BECAUSE OUR RECORD IS NOT VERY GOOD , BUT THE STATE HAS NOT CONT ENDED THAT --
THE SENTENCING FOR THE FIRST OFFENSE, I F I CAN CALL IT THAT , WAS SENTENCED AT THE SAME TIME OR AS PART OF THE SENTENCING FOR THE SECOND FELONY OFFENSE. IS THAT CORRECT?
RIGHT. THAT IS OUR POSI TION. THE STATE HAS NOT TAKEN AN OOSITE POSITION.
ON CE THE FIRST O NEHAENED IN AP RIL 19 93 , A NDWHAT HA ENED AFTER THAT CONVICTION, WAS HE WAS PLACED ON PROBATION . IN SEPTEMBE R OF ' 93 , HE COMMITTED A ROBBERY AND WAS CONVICTED , AND AT THAT TIME , THERE WAS A VIOLATION OF PROBATION , AND THAT WAS T HEVIOLATION OF PROBATION , W ASDEALT WITH AT THE SAME TIME AS THE ROBBERY. CORRECT?
CORRECT. YES , YOUR HONOR .
LE T ME ASK YOU T HIS , THIS, REALLY, STARTS WITH JO INER , IT SEEMS TO ME , AND JOYNER IS DE ALING WITH THE CONCEPTTHAT, LA TER, GOT INTO JUSTICE OVERTON'S OP INION IN BARNES, AND THAT WAS THAT THIS HABITUAL OFFENDER SENTENCING , WAS DEALING WITH SEQUENTIAL CONVICTIONS . IN OTHER WORDS, THERE SHO ULD BE AN OO RTUNITY FOR THE PERSON TO REFORM, AND I F YOU HAVE A DEMONSTRATION BY THE FACT THAT YOU ARE SEQUENTIALLY CONVICTED OF CRIMES, OF FELONIES , T HEN , THAT IS WHEN THE HABITUAL OFFENDER SENTENCING SH OULD COME INTO PLAY . ISN'T THAT WHAT JOYNER SAYS,AND THEN THAT I S WHAT BARNES SAYS, BECAUSE THEY ARE TALKING ABOUT SEQUENTIAL CONVICTIONS NOT SENTENCINGS S.
YOUR HONOR , WITH ALL DUE RESPECT , I THINK THAT YOU CAN READ BARNES TWO DIFFERENT WAYS , BUT CERTAINLY THERE IS LANGUAGE IN BARNES THAT W OULDINDICATE THAT THEY ARETALKING ABOUT SEQUENTIAL CONVICTIONS NOT SENTENCES, BUT SUBSECTION 5 ON ITS F ACE , SAYS THAT YOU HA VE TO HAVE SEPARATE SENTENCING PROCEEDINGS , AND I JUST DON'T --
WAIT A MINUTE.YOU ARE ADDING THE W ORD PROCEEDINGS.YOU ARE ADDING THAT WORD PROCEEDINGS.THAT IS WHAT I AM TRYING TOFIND. IS THAT W ORD IN THAT SUBSECTION 5? IT SAYS SEPARATE SENTENCES. AS I BELIEVE .
IT SAYS SENTENCED SEPARATELY FROM ANY OTHER FELONY CONVICTION , RIG HT?
ACTUALLY IT SAYS CONVICTION SENTENCED .
RIGHT. WHAT WE HAVE HERE, LET ME MAKE SURE THAT WE HAVE ALL THE FACTS RIGHT. WE HAVE A POSSES SION OF COCAINE CONVICTION , S O SUBSECTION 2, BY THE WAY , JUSTICE CANTERO I S ABSOLUTELY CORRECT. SUBSECTION 2 IN THIS CASE , IS NOT EVEN ALICABLE. BECAUSE IT JUST HAS NO MEANING AT ALL. HE WAS CONVICTED , BUT THE SENTENCE WAS WITH HELD ON THE POSSESSION OF CO CAINE CHARGE . THEN HE GOT CONVICTED ON A GRAND THEFT IN SEPTEM BER OF '93. AND THAT, ALSO , THEN , BECAME A VIO LATION OF PROBATION .
WA IT. I AM SO RRY. IN APRIL, DI D YOU SAY THAT THE ADJUDICATION WAS WITHHELD?
NO.NO. NO. HE WAS ADJUDICATED .
HE WAS ADJUDICATED.
HE WAS CONVICTED BUT THE SENTENCE WAS WITHHELD IN APRIL OF ' 93.
HE WAS PL ACED ON PROBATION.
RIGHT.
YOU CHARACTERI ZE IT AS A SENTENCE THAT. IS, R EALLY , AT THE HE ART OF WHAT WE HAVE TO DEAL WITH HERE.
THAT IS WHAT THIS CASE I S ABOUT.
WHAT I AM HAVING TROUBLEWITH IS THAT, FROM MY UNDERSTANDING OF THE HABITUAL FELONY OFFENDER STATUTE, AND VIOLENT FELONY OFFENDER, IS IT IS REALLY A "THREE STRIKES" AND AWE ARE OUT -- AND YOU ARE OUT , KIND OF LAW, WHERE YOU NEED TWO PREVIOUS CONVICTIONS, AND IT IS THE THIRD CONVICTION THAT MAKES YOU THE HABITUAL FELONY OFFENDER , AND I T SEEMS LI KE HE IS ONLY CONVICTED OF TWO CRIMES , AND THEN THE VIOLATION OF PROBATION WAS KIND OF LIKE THE THIRD STRIKE. IS THAT WRONG ?
HE , THERE ARE THREE CONVICTIONS. HE HAS A VIOL ATION , HE HAS A POSSESSION OF COC AINE THAT HE GOT CONVICTED ON , BUT I SAY THE SENTENCE WASWITHHELD. HE WAS PUT ON PROBATION. THEN IN SEPTEMBER OF '93 , HE HAD A GRAND THEFT , AND THAT WAS HIS SE COND CONVICTION . AND HE WAS, THEN , SENTENCED , WE BELIEVE , AT THE VERY SAME PROCEEDING, FOR TH OSE TWO , BUT THEN THE THIRD ONE IS A CONVICTION FOR ROB BERY.
THAT IS THE THIRD ONE .
RIGHT. AND THERE IS A THIRD CONVICTION FOR ROBBERY , A NDWHAT OUR POSITION IS , IS THAT SUBSECTION 5 SAYS THAT ALL THOSE SENTENCES HAVE TO BE SEPARATE SENTENCES .
IT ALL COMES DOWN TO THE DEFINITION.
LET ME TAKE THIS , I AM SORRY. LET ME TAKE THIS TO ITS LOGICAL CONC LUSION FROM YOUR STANDPOINT. YOU ARE SAYING THAT PROBATION IS NOT A SENTENCE , CORRECT?
YES, YOUR HONO R.
SO THE PURPOS E OF THE HABITUAL OFFENDER STATUTE , YOU WOULD AGREE , I S THAT PEOPLE WHO HAVE BEEN CONVICTED OF MULTIPLE OFFENSES, SHO ULD, THEN , BE GIVEN HEAVIER SENTENCING S , BECAUSE -- SENTENCES, BECAUSE THEY HAVE DEMONSTRATED THEY ARE NOTGOING TO BE RE BILL STATE -- REHABILITATED, ET CETERA. CORRECT?
I THINK THAT IS PROBABLY IS THE LEGIS LATIVE INTENT.
ALL RIGHT. AND SO IF WE AC CEPT YOUR PROPOSITION THAT PROBATION IS NOT A SENTENCE, THEN , IF A DEFENDANT IS PUT O N PROBATION , MUL TIPLE TIMES , AND THEN WHEN HE GETS BEFORE THE COURT , SAY, THE THIRD O R THE FOURTH OR EVEN THE FI FTH TIME , THE HABITUAL OFFENDER STATUTE WOULD NEVER BE ALICABLE TO HIM , BECAUSE YOU SAY HE HAS NEVER BEEN SENTENCED. EVEN THOUGH HE HAS BEEN GIVEN MULTIPLE OORTUNITIES AND NOW HE IS BEFORE T HECOURT AND YOU CANNOT USE THE HABITUAL OFFENDER STATUTE. DOES THAT, REALLY , M AKE ANY SENSE, AND DO YOU THINK THAT THAT IS WHAT THE LEGISLATURE, REALLY, INTE NDED?
I BELIEVE THE LEGISLATURE INTENDED THAT YOU HAVE SEPARATE SENTENCES. THAT IS WHAT THEY WRO TE. THAT IS THE PLAIN LANG UAGE. I DO AGR EE THAT THAT IS WHAT WE ARE SAYING , THAT I THIN K A COMMENT WAS MA DE IN THE OPENING ARGUMENT , THAT IF YOU GET THAT PROBATION THEFIRST TIME, AND YOU SE RV E IT OUT, JUSTICE ANST EAD MADE THIS COMMENT, AND YOU SERVE IT OUT, THAT WILL NEVER BE COUNTED AS A SENTENCE UNDER OUR THEORY OF THE CASE , AND THAT IS CORRECT .
HOW CAN THAT SQUARE, THOUGH, WITH WHAT WE KNO W THE LEGISLATURE WAS THINKING, WHEN THEY PRO VIDED FOR SUBSECTION 2?
AGAIN , I WOULD SAY SUBSECTION 2 IS NOT ALICABLE TO THIS CASE, BUTI UNDERSTAND IT MAY IN FORM HOW YOU READ SUBSECTION 5.
HOW DOES IT INF ORM US IN THAT? DOESN'T THAT SEND OUT A STRONG SIGNAL THAT THE LEGISLATURE INTENDED , EVEN WHEN ADJUDICATION IS WITHHELD , AND PROBATION IS IMPOSED , THAT THAT S TILLSHOULD BE COUNTE D, THEN , AS A PREDI CATE PRIOR OFFENSE . IT SAYS THAT . RIGHT?
I UND ERSTAND , YOUR HO NOR , BUT I HAVE TWO ANS WERS .
WOULDN'T IT MAKE SEN SE TO EXTEND FROM THAT, WELL , IF THE LEGISLATURE FELT THAT WAY , THEY WOULD FEEL EVEN STRONGER, IF THERE IS A ADJUDICATION , AND THERE IS PROBATION.I MEAN, WOULDN 'T THAT BE A LOGICAL INTERPRETATION OF THE LEGISLATURE'S INTENT FLOWING FROM READ ING THAT PROVISION?
I DON'T THINK SO. I MEAN, I UNDERSTAND H OWTHAT COULD INFO RM SUBSECTION 5 , BUT I THINK SUBSECTION 5 IS DEPR IVED OF MEA NING , IF YOU DON'T READ IT BY IT Y TERMS , AND I DON'T KNOW THATWE HAVE TO GET EVEN TO LEGIS LATIVE INTENT . I THINK SUBSECTION 5 IS PLAIN --
I REALIZE WE STILL HAVE TO DEAL WITH THIS THING ABOUT SENTENCED SEPARATELY FROM ANY OTHER FELONY CONVICTIONS , AND THAT WAS , REALLY, THE BASIS OF THE FOURTH DISTRI CT'S R ULING, RIGHT, THAT THE --
RIGHT.
I N THEIR VIEW THE SENTENCING OCCURRED FOR THIS FIRST OFFENSE IN SEPTEMBER , WHEN THE PROBATION WAS VIOLATED, AND NOW THE SUBSEQUENT OF -- OFFENSE THAT WAS USED A S THE VIOLATION OF PROBATION AND THE INITIAL OFFENSE , THE JUDGE IMPOSED THE GUIDELINES FOR THOSE. WERE THE SENTENCING GUIDELINES INVOLVED IN THIS CASE, OR --
OUR RECORD IS NOT , I AM NOT SURE .
WOULD YOU HAVE TO AGREE THAT THE TERM "SENTENCE" HAS , DEPENDING UPON THE CONTEXT , BEEN DEFINED BY THIS COURT , BOTH AS S A ENTS AND NOT A SENTENCE, CORRECT? I MEAN, LA RSON , WE -- BOTH AS A SENTENCE AND NOT A SENTENCE, CORRECT? I MEAN, LAR SON WE QU OTED AS DEFINED IN BLAC K'S DICTIONARY, PROBATION IS A SENTENCE, RELE ASING T HEDEFENDANT INTO THE COMM UNITY UNDER THE SUPERVIS ION OF A PROBATION OFF ICER , AND THE FIVE BASIC SENTENCING ALTERNATIVES IN FLORIDA , PROBATION IS LI STED AS ON E OF THEM , BUT THERE WE SA ID IT WAS. I RECOGNIZE THAT WE HAVE, ALSO, SAID IT IS TECHNI CALLY NOT A SENTENCE .
I R EALLY THINK WE H AVE THE BETTER SI DE OF THAT ARGUMENT. 948.01 IS VE RY CLEAR THAT YOU WORK TO KEEP THOSE AP ART . RULE 3.790 ON ITS FACE , SAYS PRONOUNCEMENT AND IM POSITION OF SENTENCE OF IMPRISONMENT SHALL NOT BE MADE ON A DEFENDANT WHO IS PLACED ON PROBATION.
THAT IS SENTENCE OF IMPRISONMENT. IF WE LO OK WITHIN 775, IF YOU LOOK A L I TTLE F URTHER UP IN SE CTION 2 , AND 1- A , 2-A , IT SAYS WH ILE THE DEFENDANT WAS SER VING A PRISON SENTENCE OR OTHER SENTENCE. A COURT-OR DERED OR LAWF ULLY IMPOSED SUPERVIS ION. IN SUBSECTION B, IT SAYS RELEASED FROM A PRI SO N SENTENCE, PROBATION COMMUNITY CONTROL, CONTROLLED RELEASE , PROBATION , OR OTHER LAWFUL RELEASE, I ASS UME I T MEANS PAROLE, IF WE ACCEPT YOUR ARGUMENT, THEN IT HAS N O MEANING WHEN THEY SAY A PRISON SENTENCE OR OTHER SENTENCE, OR IF I GO T O 948.012 AND I T TAL KS ABOUT SPLIT SENTENCE IN SUBSECTION 2, IT SAYS THE COURT MAY ALSO IMPOSE A S PLIT SENTENCE, WHEREBY THE DEFENDANT IS SENTENCED TO A TERM O F PROBATION, WHICH MAY BE FOLLOWED BY A PER IOD OF INCARCERATION. ALL OF THOSE SP EAK OF SENTENCING IN MORE THAN J UST A PERIOD OF IMPRISONMENT .
BUT I DON'T THINK T HAT YOU CAN SAY THAT A SENTENCE AND PROBATION ARE THE SAME. I DON'T HAVE TIME, I DON'T THINK, TO GET TOTALLY INTO MY DO UBLE JEOPA RDY AR GUMENT , BUT WE HAVE A DOUBLE JEOPARDY ARGUMENT IN OUR BRIEF, AND I WOULD VERY MUCH SAY THAT, IF THERE WAS A SENTENCE AND THEN A RESENTENCING , IN THIS CASE , THERE ARE REAL DOUBLE JEOPARDY PROBLEMS AT IS SU E , BUT I WA NT TO , ALSO, TUR N TO THE COMMITTEE NOTE TO RULE 3.790 , WHICH SAYS FLAT-OUT, A PROBATIONARY PERIOD IS NOT A SENTENCE, AND ANY PROCEDURE THAT TENDS TO M IX THEM, UNDESI RABLE , EVEN IF THE MI XTURE IS ACCOMPLISHED BY NOTHING MORE THAN THE TERMINOLOGY US ED BY THE TRIAL COURT I N A DE SIRED - - IN A DESIRE TO PLACE PERSON ON PROBATION.
LET ME ASK YOU A HYPOTHETICAL IF I COULD.
JUSTICE QU INCE .
GIVEN OUR JURISPRUDENCE THAT HAS PROBATION IS A SENTENCE IN SOME RESPECTS , AND PROBATION IS NOT A SENTENCE IN OTHER RESPEC TS , AND GIVEN THE LEGISLATIVE INTENT B E HIND HABITUAL OFFENDER STATUTE, WHAT GOOD POLICY, PUBLIC PO LICY REA SON WOULD THERE BE TO SAY , UNDERTHESE CIRCUMSTANCES , PROBATION IS NOT A SENT ?
I THINK BEING FAIR T O SUBSECTION 5, GIVING THE LEGISLATURE THE PLAIN INTENT WHAT HAVE IT ENA CTED , AND I THINK THE RULE OF LI NITY . I MEAN, I F IT IS AMBIGUOUS AS TO HOW YOU READ THIS SUBSECTION, I THINK MR . RICHARDSON WINS UNDER THE RULE OF LIN ITY. I THINK THAT THEY HAVE TO , I THINK THE S TATE HAS THE BURDEN OF SHOWING THAT THIS IS UNAMBIGUOUS , IN ITS FAVOR , AND I DON'T THINK THEY C ANDO THAT .
LET ME POSE A HYPOTHETICAL TO YOU. AND THAT IS THAT , LET'S ASSUME THAT ALL OF THE SAME THINGS HAENED HERE WITH THE EX CEPTION THAT, WITH THE FIRST OFFENSE , THAT THE JUDGE DID WITHHO LD ADJUDICATION AND PLACED THE , YOUR CL IENT ON PROBATION. AND THEN ALL THE SAME THINGS HAENED. SAME OUTCOME?
I DO THINK THE SAME OUTCOME.
SO SUBSECTION 2 WOULDN'T HAVE ANY ALI CATION THERE?
I WOULD, THEN , TU RN TO THE FOURTH DISTR ICT'S EXAMPLE THAT SUBSECTION 2 DEALS WITH THE PRIORNESS OF CONVICTIONS AND THEY GIVE THE EXAMPLE AS TO HOW YOU CAN READ THESE TO GETHER , AND THEY ARE NOT INCONSISTENT , BUT THEY MAY B E AMBIGUOUS. I MEAN , STUF FING THOSE TWO SUBSECTIONS TOGETHER CAN B E DIFFICULT , BUT THE FOU RTH DISTRICT HAS A RATIONAL WAY OF DOING IT , AND , AGAIN , I WOULD RESORT TO THE RUL E OF LINITY. I MEAN, I DON'T THINK IT IS CLEAR HOW THE STATE WINS , EVEN IN THAT EXAMPLE , BUT THAT IS NOT OUR CASE. AND MR. RICHARDSON SH OULD NOT HAVE TO FACE THE WH OLE SUBSECTION 2 PROBLEM ANYWAY. THANK YOU.
THANK YOU, MR . LANG , AND WE CERTAINLY WANT , MR . HYNDMAN, YOU HAVE GOT SOME TIME LEFT , SO W E HAVE G OTSOME TIME WITH YOU .
UNLESS THE COURT HAS SOME QUESTIONS .
HOW DOES IT FAC TOR I NTO THE ANALYSIS HERE , ALL E LSE BEING EQUAL, AND REALLY WHAT IT COMES DOWN TO IS THE DEFINITION OF WHAT A SENTENCE IS, WHY SHO ULDN'T WE ALY THE RULE OF LINI TY?
IT DOESN'T , JU STICE CANTERO , IT DOES NOT ALY TO THIS CASE T ONLY AL IES WHEN THE STATUT ORY SECT IONS IN QU ESTION ARE SUSCEPTIBLE TO DIFF ERING CONSTRUCTIONS. WE SUBM IT IN THIS CASE THAT THEY NORTH SUS CEPTIBLE TO DIFFERING CONSTRUCTIONS. THAT IS VERY CLEA R.
IT DOESN'T DEF INE A SENTENCE, RIGHT?
IT DOESN'T DEFINE IT IN THE STATUTE , ITSELF.
IN STATUTE 048. IS THERE ANYTHING IN CHAP TER 775 THAT DEFINES F ORPURPOSES OF THE STATUTE ?
Y ES. I DON'T THINK SO . I THINK IT IS CLEAR HOW IT IS BEING USED , THOUGH , AND THIS COURT HAS THE PROBATION AND SENTENCE ON. THAT.
I DON'T KNOW IF IT WAS POINTED OUT BY THE OTHERSIDE, BUT RULE 3.700-A , IT SAYS "SENTENCE DEFINED". IT SAYS , THE TE RM SENTENCE MEANS THE PRONOUNCEMENT B Y THE COURT OF THE PENA LTY IMPOSED ON A DEFENDANT FOR THE OFFENSE OF WHICH THE DEFENDANT HAS BEEN ADJUDICATED GUILTY.
EXACTLY. WHICH IS EXACTLY WHAT WE HAVE IN THIS CASE. THE COURT PRONOU NCED A PENALTY WHEN HE WAS PLACED ON PROBATION , WHEN MR. RICHARDSON WAS ADJUDICATED GUILTY THE FIRST TIME , THE COURT PRONOUNCED THE PENALTY, AND THIS COURT HAS RECOGNIZED THAT THE PENALTY IS THAT THE IMPOSITION OF A SANCTION, AND A SA NCTION C ANINCLUDE PROBATION. IT CAN INC LUDE A J AIL TERM. OR THERE IS VARIOUS SP LIT SENTENCES, ALSO , SO I THINK OUR ARGUMENT IS COMPLE TELY CONSISTENT WITH THAT RULE AND COM MENTARY . ONE OR TWO OTHER THING S IF I MIGHT , AND IN ADDITION TO BEING CONTRA RY TO THE P LAINLANGUAGE OF THE STAT UTE , I THINK , WHAT THE RESPONDENT IS ASKING US TO D O AND BASICALLY WHAT THE FOURTH IS ASKING US TO DO IS , REALLY , SOMETHING CONTRARY TO JUDICIAL ECONOMY, IN ORDER TO SATISFY THE SEPARATE SENTENCING REQUIREMENT. IF THE DEFENDANT IS IN COURT , THEY ARE ASKING TO DO A SEPARATE SENTENCE ON O NECHARGE. IF -- GIVE THE DEFENDANT ALL HIS RIGHTS. LET'S CLOSE THE F ILE ON T HIS ONE AND OPEN THE FILE O N THAT O NE. IT IS THE SAME RIGHTS AND EVERYTHING, THAT K IND OF ACTIVITY IS CONTRARY TO JUSTICE AND THAT IS WHAT IS BEING REQUIRED UNDER T HEFOURTH DISTRICT . THAT IS SOMETHING TO CONSIDER. JUSTICE LEWIS AND WELLS, WE DISCUSSED BARNES BEFO RE. I LOOKED AT IT AGAIN AND BARNES DOES ADDRESS A SEQUENTIAL CONVICTION REQUIREMENT.WHEN THAT BECAME SUBSECTION 5, THEN IT WAS ADDRES SED I N TERMS OF SEPARATE SENTENCING REQUIREMENT.I THINK THEY ARE CONS ISTENT , THOUGH, AND I THINK THE STATUTE MAINTAINS THE SP IRIT OF BARNES, BECAUSE WHAT WE HAVE IN BOTH OF THOSE ISN'T GIVING THE DEFENDANTOORTUNITY TO RE FORM, WHETHER IT IS , HE KNOWS ABOUT THE CONVICTION, HE KNOWS ABOUT THE SENTENCE. HE IS GIVE N AN OORTUNITY TO REFORM.THAT IS REALLY WHAT WE GET OUT OF BARNES , AND IN THIS CASE, MR . RICHAR DSON WAS GIVEN TWO OORTUNITIES TO INFORM, T O REFOR M H ISCRIMINAL ACTIVITY. HE DID NOT , AND HE HA D A THIRD CONVICTION, AND HE WAS PROPERLY SENTENCED A S HABITUAL OFFENDER. I WOULD LI KE TO THANK THE COURT FOR ITS TIME, AND WE WOULD LIKE TO ASK THAT THIS COURT QU ASH THE DECISION OF THE FOURTH DISTR ICT AND CERTIFY CONF LICT IN FA VOR OF McCALL AND THE DECISIONS OF THE OTHER DISTRICT COURTS. THANK YOU.
THANK YOU .
ONCE AGAIN, THE COURT WOULD VERY MUCH LIK E TO EXPRESS ITS ARECIATION TO MR. LANG , MR . BLUE , AND MS. DEAN, FOR VOLUNTEER ING YOUR TIME PRO BONO , TO PROVIDE A SERVICE WHICH IS ESSENTIAL TO THE ADMINISTRATION OF JUST ICE IN THIS CASE , AND IN FLORIDA THAT WE HAVE LAWYERSTOLOGY DO THAT, AND THE COURT IS VERY ARECIATIVE OF IT. WE WILL BE IN RE CESS , WE WILL ONLY T AKE A FIVE- MINUTE RECESS THIS MORNING , S O THE THIRD CASE, PLE ASE BE PREPARED.
MARSHA L: PLEASE RISE.