2D06-674 / Vann v. State

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State: Florida

Court: Florida Southern District Court

Docket No: 2D06-674

Case Date: 12/12/2007

Plaintiff: 2D06-674 / Vann

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FELIX VANN,                                                                             )
)
Appellant,                                                                              )
)
v.                                                                                      )   Case No. 2D06-674
)
STATE OF FLORIDA,                                                                       )
)
Appellee.                                                                               )
___________________________________ )
Opinion filed December 12, 2007.
Appeal from the Circuit Court for Hillsborough
County; Chet A. Tharpe, Judge.
James Marion Moorman, Public Defender,
and Brad Permar, Assistant Public Defender,
Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Ronald Napolitano,
Assistant Attorney General, Tampa, for
Appellee.
LaROSE, Judge.
Felix Vann entered an open plea to sale of a controlled substance within
1000 feet of a church, possession of cocaine, and possession of drug paraphernalia.
The trial court sentenced him as a habitual felony offender (HFO) to fifteen years in
prison.   Mr. Vann argues that the trial court erred in imposing an HFO sentence

because the State did not serve its written HFO notice until after he entered his plea.
Mr. Vann failed to preserve this issue for appeal.   Accordingly, we affirm his conviction
and sentence.
Section 775.084(3)(b)(2), Florida Statutes (2004), the HFO statute,
provides that “[w]ritten notice shall be served on the defendant and the defendant’s
attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence
in order to allow the preparation of a submission on behalf of the defendant” (emphasis
added).   The supreme court has held that “ ‘the State shall serve notice on the
defendant either before he enters a plea of guilty or nolo contendere, or, in the event he
enters a plea of not guilty and submits to trial, prior to the imposition of sentence.’ ”
Ashley v. State, 614 So. 2d 486, 490 (Fla. 1993) (some emphasis added) (quoting
Inmon v. State, 383 So. 2d 1103, 1104 (Fla. 2d DCA 1980)).
Although Mr. Vann’s plea agreement reflects that he was aware that the
maximum possible sentence was thirty years, that he might receive an HFO sentence,
and that an HFO sentence might make him ineligible for gain time, he received legally
insufficient notice because the State did not timely provide him with notice of its actual
intention to seek an HFO sentence.
What [the defendant] could be sentenced to, and what the
State actually intends to seek as a sentence, are two
different things.   In the context of timely notice of
habitualization, it is not sufficient notice to [the defendant] to
say what the State could do; the law requires that [the
defendant] be given timely written notice of what the State
actually intends to do.
Akers v. State, 890 So. 2d 1257, 1260 (Fla. 5th DCA 2005).   Failure to follow this bright-
line procedural rule ordinarily calls for resentencing without the HFO designation.
Akers, 890 So. 2d at 1258-60; Ashley, 614 So. 2d at 491.
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However, Mr. Vann did not object at sentencing, nor did he file a motion to
correct sentence under Florida Rule of Criminal Procedure 3.800(b)(2).   Consequently,
he failed to preserve the issue as required by Florida Rule of Appellate Procedure
9.140(b)(2)(A)(d) and section 924.051(3),1 Florida Statutes (2004).   We affirm the
conviction and sentence without prejudice to any right Mr. Vann may have to file a
motion for postconviction relief.
Affirmed.
DAVIS, J., and ST. ARNOLD, JACK R., ASSOCIATE JUDGE, Concur.
1    Section 924.051 (the Criminal Appeal Reform Act) took effect July 1, 1996.
Ch. 96-248, § 9, at 257, Laws of Fla.   Prior to the Act, no contemporaneous objection
was required to preserve for appeal the lack of compliance with the section
775.084 (3)                                                                              (a) notice requirement.   See, e.g., Ashley, 614 So. 2d at 490 (reasoning that
notice was a purely legal matter requiring no factual determination).
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