Patrick Hawkins v. State of Florida , 2016 Fla. App. LEXIS 11007 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PATRICK HAWKINS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-4963
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 18, 2016.
An appeal from an order of the Circuit Court for Jefferson County.
Karen A. Gievers, Judge.
Patrick Hawkins, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges the denial of his postconviction motion seeking
relief pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and
remand.
In his motion, the appellant argues that he was improperly habitualized
contrary to State v. Thompson, 750 So. 2d 643 (Fla. 1999), for a conviction of
sexual battery with physical force likely to cause serious personal injury. The trial
court denied this claim, concluding that Thompson did not apply.
Prior to 1995, “life felonies were not subject to habitual felony offender
enhancement.” James v. State, 775 So. 2d 347, 347 (Fla. 1st DCA 2000) (citing §
775.084(4)(a), Fla. Stat. (1993), and Lamont v. State, 610 So. 2d 435, 438 (Fla.
1992)). However, the 1995 amendment to the statute that made it permissible to
sentence a defendant convicted of a life felony as a habitual felony offender was
later deemed unconstitutional by the Florida Supreme Court. James, 775 So. 2d at
347-48 (citing Thompson, 750 So. 2d at 649). Defendants whose sentences were
enhanced based upon the unconstitutional amendment and whose crimes occurred
during the window period are entitled to resentencing under the laws in effect prior
to the amendment. James. This window period ranges from October 1, 1995, to
May 24, 1997. Salters v. State, 758 So. 2d 667, 671 (Fla. 2000).
In the instant case, the appellant’s habitual felony offender sentence was
imposed for a life felony that was committed on October 16, 1996. See §
794.011(3), Fla. Stat. (1995) (providing that sexual battery with physical force
likely to cause serious personal injury is a life felony). Therefore it fell within the
2
window period and Thompson applies. In response to this Court’s Toler1 order,
the state suggested that the appellant’s claim was untimely, as such claims were
more appropriately raised pursuant to Florida Rule of Criminal Procedure 3.850.
However, the weight of authority holds that such claims may properly be raised
pursuant to rule 3.800(a). See Simmons v. State, 180 So. 3d 244 (Fla. 3d DCA
2015); Wheeler v. State, 129 So. 3d 469 (Fla. 2d DCA 2013); Ford v. State, 868
So. 2d 631 (Fla. 2d DCA 2004); Cook v. State, 866 So. 2d 1291 (Fla. 4th DCA
2004); Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003); Kinsey v. State, 831
So. 2d 1253 (Fla. 2d DCA 2002); Green v. State, 810 So. 2d 1101 (Fla. 1st DCA
2001); Lowe v. State, 786 So. 2d 1194 (Fla. 2d DCA 2001); Lewis v. State, 764
So. 2d 874 (Fla. 4th DCA 2000); Hankerson v. State, 765 So. 2d 982 (Fla. 4th
DCA 2000).
Accordingly, we reverse and remand for the trial court to resentence the
appellant on the sexual battery count only pursuant to the valid laws in effect at the
time his offenses were committed. See James, 775 So. 2d at 348; Green, 810 So.
2d at 1102. As the appellant’s offense date also falls within the Heggs2 window
period, he should be resentenced pursuant to the 1994 sentencing guidelines. See
Trapp v. State, 760 So. 2d 924, 928 (Fla. 2008); Ford, 868 So. 2d at 632. Upon
resentencing, the trial court will have the discretion to impose an upward departure
1
Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
2
Heggs v. State, 759 So. 2d 620 (Fla. 2000).
3
sentence if permissible reasons are found. Id.
REVERSED and REMANDED for further proceedings consistent with this
opinion.
BILBREY, KELSEY, and M.K. THOMAS, JJ., CONCUR.
4