FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D16-4184
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BOBBY ALLEN BENNETT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bradford County.
William E. Davis, Judge.
November 30, 2018
B.L. THOMAS, C.J.
Appellant challenges his judgment and sentence, arguing,
inter alia, that the trial court erred in giving a jury instruction on
principals in connection with a conspiracy charge, and that the
trial court improperly imposed consecutive sentences while also
designating Appellant as an habitual felony offender.
Appellant was charged with burglary of an unoccupied
structure, conspiracy to commit burglary of an unoccupied
structure, grand theft, and criminal mischief. The charges
stemmed from an incident in which Appellant and another
person broke into a convenience store, stole beer and cigarettes,
and fled.
The jury instructions included the following standard
instruction on principals:
3.5(a). PRINCIPALS
If the defendant helped another person or persons
commit a crime, the defendant is a principal and must
be treated as if he had done all the things the other
person did if:
1. the defendant had a conscious intent that the
criminal act be done and
2. the defendant did some act or said some word which
was intended to and which did incite, cause, encourage,
assist, or advise the other person or persons to actually
commit the crime.
During the charge conference, the trial court noted that the
instruction on principals appeared to be the standard jury
instruction, and Appellant’s counsel did not object, stating that
he had reviewed the instructions earlier and did not see any
problem with them. Appellant did not request an instruction to
inform the jury that the principals instruction only applied to
certain counts.
The jury found Appellant guilty of all four counts. The trial
court declared Appellant an habitual felony offender (“HFO”) and
sentenced him to five years in prison for burglary, five years in
prison for conspiracy to commit burglary, and five years in prison
for grand theft, with each sentence to run consecutively, and
60 days in prison for the criminal mischief count.
During pendency of this appeal, Appellant filed a motion to
correct sentencing errors pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2), arguing that the trial court could not
sentence him to consecutive sentences enhanced by the HFO
statute where the offenses arose out of a single criminal episode.
The trial court denied Appellant’s motion.
Appellant argues that the trial court committed fundamental
error by giving “the principals instruction without the additional
instruction limiting it to substantive charges.” However,
Appellant did not request a limiting instruction at the charge
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conference, and his counsel in fact stated that he saw no problem
with the standard principal instruction. “Without requesting a
limiting instruction, the defendant invited the error.” Rondon v.
State,
157 So. 3d 360, 362 (Fla. 4th DCA 2015). If an error is
invited, “the appellate court will not consider the error a basis for
reversal.” Goodwin v. State,
751 So. 2d 537, 544 (Fla. 1999).
Appellant therefore waived any argument of fundamental error
in the jury instructions.
Appellant also argues that the trial court improperly
sentenced him to consecutive sentences while also designating
him as an habitual felony offender. Appellate courts review
de novo a trial court’s denial of a motion to correct sentencing
error. Willard v. State,
22 So. 3d 864 (Fla. 4th DCA 2009). The
State agrees that Appellant’s offenses were committed during one
criminal episode, but argues that Appellant did not receive
enhanced sentences, thus, the consecutive sentences were
allowed.
Appellant cites Hale v. State,
630 So. 2d 521, 524 (Fla. 1993),
for the proposition that
nothing in the language of the habitual offender statute
. . . suggests that the legislature . . . intended that, once
the sentences from multiple crimes committed during a
single criminal episode have been enhanced through the
habitual offender statutes, the total penalty should then
be further increased by ordering that the sentences run
consecutively.
In Cotto v. State, the supreme court clarified that
Hale stands for the proposition that once multiple
sentences from a single criminal episode are enhanced
through the habitual offender statute, the total penalty
cannot be further increased by consecutive sentencing
absent specific legislative authorization. . . .
. . . [A] PRR sentence is not an enhanced sentence
within the meaning of Hale. . . . We are unwilling to
extend Hale to apply to unenhanced sentences.
139 So. 3d 283, 289 (Fla. 2014) (emphasis removed).
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The State argues that Hale does not apply, because,
although the court designated Appellant as an habitual felony
offender, his sentence was not enhanced by the HFO statute:
Appellant was sentenced to five years for each felony count, in
accordance with the non-HFO statutory maximum for third-
degree felonies. The State argues that because Appellant’s
sentence does not exceed the statutory maximum, it has not been
“enhanced” by the HFO statute, and is not illegal under Hale.
Appellant argues that it is unclear whether an “enhanced”
sentence means only one with an increased total penalty. He
asserts that the “detriments accompanying the status of being
designated an HFO” constitute enhancement, even if the total
incarceration time was not increased above the statutory
maximum.
This court’s decision in Braswell v. State, could be read to
suggest that consecutive HFO sentences for offenses committed
in a single criminal episode are per se impermissible, regardless
of whether the sentences exceed the non-HFO statutory
maximum.
171 So. 3d 199, 199 (Fla. 1st DCA 2015) (“The trial
court is prohibited from imposing consecutive HFO sentences for
offenses that were committed during a single criminal episode.”).
Although the supreme court stated in Hale that “enhanced”
sentences arising from the same episode could not run
consecutively, 630 So. 2d at 525, in Cotto it clarified that an
“enhanced” sentence is one in which the period of incarceration
has been extended beyond the statutory maximum.
Cotto, 139
So. 3d at 289. Because “[a] PRR sentence is not enhanced beyond
the statutory maximum,” it constitutes an “unenhanced” sentence
to which Hale does not apply.
Id. (quoting Reeves v. State,
920
So. 2d 724, 726 (Fla. 5th DCA 2006), app’d
957 So. 2d 625 (Fla.
2007)).
Thus, under Florida Supreme Court precedent, an
“enhanced” sentence is one in which the period of incarceration
has been increased beyond the normal statutory
maximum. 139
So. 3d at 289. Here, Appellant was designated as an HFO, but
was given the non-HFO statutory maximum, i.e. five years for
each offense. These sentences were thus not “enhanced,” and
therefore may be imposed consecutively.
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We reject without comment all other issues raised by
Appellant.
AFFIRMED.
OSTERHAUS and BILBREY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, Joanna A. Mauer and Kathleen
Pafford, Assistant Public Defenders, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Steven Edward Woods,
Assistant Attorney General, Tallahassee, for Appellee.
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