Opinion
Case No. 3D03-660.
Opinion filed November 19, 2003.
An appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Lower Tribunal No. 02-5025.
Leonard J. Cooperman, for appellant.
Charles J. Christ, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
Before COPE, SHEVIN and RAMIREZ, JJ.
Shawn Smith appeals his sentences as a habitual violent felony offender ("HVFO"). Under the circumstances of this case, we conclude that there must be a further hearing on the question whether defendant-appellant Smith qualifies as an HVFO.
The defendant was convicted of attempted robbery, fleeing or attempting to elude a law enforcement officer, and leaving the scene of an accident involving injuries. The State requested adjudication of the defendant as an HVFO.
The crime date was February 19, 2002.
The State sought to qualify the defendant as an HVFO by establishing that he had a prior conviction for aggravated assault with a deadly weapon. See § 775.084(1)(b)1.g., Fla. Stat. (2001). For this purpose, the State relied on a judgment against the defendant in Miami-Dade County circuit court case number 97-8596 which stated that the defendant had been convicted of aggravated assault on a law enforcement officer. The defendant had entered into a plea bargain in the 1997 case.
The offense of aggravated assault can be committed in two ways: "(a) With a deadly weapon without intent to kill; or (b) With an intent to commit a felony." § 784.021(1), Fla. Stat. (1995). The offense description on the 1997 judgment stated "Aggravated Assault on a Law Enforcement Officer." It did not include the phrase "with a deadly weapon."
The offense date of the 1997 crime was February 21, 1997.
The State filed the information from the 1997 case. Count four of the information contains language which appears to indicate that the defendant was charged under both alternatives of the aggravated assault statute.
Count four alleged that the defendant committed an aggravated assault upon a law enforcement officer "by STRIKING AN AUTOMOBILE OCCUPIED BY C BRAYNEN, which created a well-founded fear in said victim that such violence was imminent, with a deadly weapon to wit: AN AUTOMOBILEt [sic] to commit a felony, to wit: in violation of s. 784.021 and 784.07 and 775.0823 and s. 775.087, Fla. Stat. . . .".
The defendant argues that, absent an unambiguous indication that the guilty plea included the "deadly weapon" portion of the aggravated assault statute, the 1997 conviction should not be used to qualify the defendant as an HVFO. The trial court took the view — with which we agree — that the transcript of the plea colloquy should be consulted to obtain a definitive answer to the terms of the plea. Unfortunately, thus far the court reporter and court reporting firm have been unable to locate the notes of the plea colloquy.
The 1997 judgment does include a citation to the weapon statute, section 775.087, Florida Statutes (1997), along with citations to the other statutes under which the defendant was charged. This suggests that the defendant did, in fact, plead to the deadly weapon alternative of the statute. Experience shows, however, that statutory citations do not always conform to the plea colloquy and we are reluctant to rest a decision on the statutory citation alone.
§§ 784.021, 784.07, 775.0823, and 775.087, Florida Statutes.
We have considered the possibility that the enhancement of aggravated assault on the 1997 judgment from a third degree felony to a second degree felony was attributable to section 775.087, but the defendant was also charged under section 784.07, Florida Statutes (1997), which in the case of aggravated assault on a law enforcement officer produces an enhancement from a third degree felony to a second degree felony. Id. § 784.07(2)(c).
Under the circumstances we conclude that we should remand the matter for a further hearing on the question whether the defendant qualifies as an HVFO. See Shargaa v. State, 102 So.2d 809, 812 (Fla. 1958) ("In proceedings of this nature the existence of the prior convictions . . . is a fact to be proved as any other fact."). At the hearing the court should be provided with the transcript of the 1997 plea colloquy if it can be located after further search, or alternatively, if the transcript remains unavailable, a reconstruction of the terms of this part of the 1997 plea may be attempted based on testimony of the participants and such 1997 documents as may be available. If these efforts prove unsuccessful in determining whether the 1997 plea included the deadly weapon portion of the aggravated assault statute, then the HVFO adjudication must be vacated and the defendant resentenced under any other available sentencing alternative. This would, of course, include possible resentencing as a habitual felony offender ("HFO") under which statute the defendant apparently qualifies.
Reversed and remanded for further proceedings consistent here-with.
We do not disturb the determination that the defendant qualifies as a prison releasee reoffender.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.