Opinion
Case No. 2D97-1430.
Opinion filed September 13, 2000.
Appeal from the Circuit Court for Pinellas County; Brandt C. Downey, III, Judge.
James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
David C. Bernuth appealed the judgment and sentence for escape, and counsel for both parties filed their briefs pursuant to Anders v. California, 386 U.S. 738 (1967). Upon the discovery of a potential issue regarding the validity of Bernuth's sentence in light of State v. Thompson, 750 So.2d 643 (Fla. 1999), we issued an order requesting supplemental briefing. Although a remand for resentencing pursuant to this issue would most likely produce a sentence greater than the sentence Bernuth appeals, counsel for Bernuth requested such relief in its supplemental brief. Because counsel effectively alleges error, we are compelled to remand for reconsideration of sentence.
In Thompson, the supreme court held that chapter 95-182, Laws of Florida, which amended section 775.084, Florida Statutes (1995), was unconstitutional as a violation of the single subject requirement of article III, section 6 of the Florida Constitution. See 750 So.2d 643, 649 (Fla. 1999).
From the record, it is not clear whether the trial court intended to sentence Bernuth as a habitual felony offender or a violent career criminal, since he qualified as both. The State filed a notice to seek sentencing enhancement as a violent career criminal pursuant to section 775.084(1)(c), Florida Statutes (1995). Bernuth agreed to plead guilty in exchange for a sentence of "ten years in the Department of Corrections as an habitual offender." At the sentencing hearing, the State noted that Bernuth had been sentenced as a violent career criminal four months previously, "which in and of itself also means he's a habitual felony offender." During the plea colloquy, Bernuth averred that he understood the rights he was forfeiting and that the maximum sentence he could receive was "forty years as a violent career criminal." The court also asked: "Do you understand that even on this charge you will be sentenced as a career criminal, and as such you might not get all of the good and gain time as an ordinary convict?" The trial court then sentenced Bernuth to ten years "as a career criminal" to run concur rently with his sentence in the underlying charges. On the judgment and sentence, the trial court checked the box for a habitual felony offender designation. The form does not contain a box for the violent career criminal designation.
If the trial court sentenced Bernuth as a habitual felony offender, then he is not entitled to resentencing under Thompson because chapter 95-182 did not amend the habitual felony offender designation. See Johnson v. State, 25 Fla. L. Weekly S600 (Fla. July 13, 2000). However, if Bernuth was sentenced as a violent career criminal, then he is entitled to resentencing under the valid laws in effect on the date of the crime because that designation was created by chapter 95-182. See Busby v. State, 25 Fla. L. Weekly S594, S594 (Fla. July 14, 2000). Accordingly, we remand this case to the trial court to make a determination of whether Bernuth was sentenced as a habitual felony offender or a violent career criminal.
If the trial court determines that Bernuth was sentenced as a habitual felony offender, it should decline to resentence him. If, however, the trial court deter mines that Bernuth was sentenced as a violent career criminal, it should resentence Bernuth under the valid laws in effect on March 8, 1996. Because Bernuth's sentence was the result of a plea agreement, he should be given the opportunity to withdraw his plea prior to resentencing. See State v. Holley, 702 So.2d 601, 602 (Fla. 2d DCA 1997).
It should be noted that, whether or not he withdraws his plea, Bernuth may still receive up to thirty years as a habitual felony offender. See § 775.084(4)(a)2., Fla. Stat. (1993). While such a sentence is much greater than the ten-year downward departure which Bernuth appeals, we must assume that counsel for Bernuth considered the possibility of a harsher sentence in filing a supplemental brief requesting resentencing in this case.
Reversed and remanded for the trial court to conduct a new sentencing hearing.
WHATLEY, J., and DANAHY, PAUL W., (SENIOR) JUDGE, Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.