Summary
adopting the rationale ofKing v. State, 597 So.2d 309, 314 (Fla. 2d DCA1992), in which the Second District held — not in the context of a separation of powers challenge — that the trial court has the discretion "to exercise leniency and to sentence a defendant found to be an habitual felony offender or an habitual violent felony offender to a sentence less severe than the maximum sentence that is permitted by subsections 775.084 or (b)"
Summary of this case from State v. CottonOpinion
No. 79689.
March 25, 1993.
Appeal from the Circuit Court, Hillsborough County, Harry Lee Coe, III, J.
James Marion Moorman, Public Defender and John S. Lynch, Asst. Public Defender, Bartow, for petitioner.
Robert A. Butterworth, Atty. Gen., and Davis G. Anderson and Peggy Quince, Asst. Attys. Gen., Tampa, for respondent.
We review McKnight v. State, 595 So.2d 1059 (Fla. 2d DCA 1992), because of its conflict with State v. Kendrick, 596 So.2d 1153 (Fla. 5th DCA 1992), review dismissed, 613 So.2d 5 (Fla. 1992). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution.
We hold that the trial judge has the discretion to place an habitual felony offender on probation. As the basis for our conclusion, we adopt the rationale of the en banc opinion in King v. State, 597 So.2d 309 (Fla. 2d DCA), review denied, 602 So.2d 942 (Fla. 1992). We do not address the other points raised by petitioner.
We disapprove Kendrick to the extent that it conflicts with our opinion, and we approve the decision below.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.