04-1280 QUINTANA V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 04-1280 QUINTANA V. STATE

Case Date: 11/23/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

** EDUARDO QUINTANA, ** Appellant, ** vs. ** THE STATE OF FLORIDA, ** Appellee. LOWER TRIBUNAL NOS. 95-25070 95-39009 93-15864 93-14914 93-12629 CASE NO. 3D04-1280

Opinion filed November 23, 2005. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, David C. Miller, Judge. White, White & Associates and Jay A. White, for appellant Charles J. Crist, Jr., Attorney General, Sands, Assistant Attorney General, for appellee. Before COPE, C.J., and and Fredericka

SHEPHERD and ROTHENBERG, JJ. On Rehearing Denied

COPE, C. J. By motion law for rehearing to the him defendant is the argues habitual that the

sentencing

applicable

offender

statute in effect on the date of sentencing, not on the date of

his

crime.

That

is

incorrect.

The

applicable

criminal

penalties are those in effect at the date of the defendant's crime. See Miller v. Florida, 482 U.S. 423 (1987); Green v.

State, 696 So. 2d 488 (Fla. 3d DCA 1997). Where, as here, the statute is amended between the crime date and the sentencing date, it is the statute in effect on the date of the crime which is controlling. The defendant relies on dictum in Bover v. State, 797 So. 2d 1246 (Fla. 2001). The court said: "This Court recently

determined in Carter v. State, 786 So. 2d 1173, 1180-81 (Fla. 2001), that a habitual offender sentence may be correctable as an illegal sentence pursuant where the to Florida Rule of Criminal in

Procedure

3.800(a),

habitual

offender

statute

effect at the time of sentencing did not permit habitualization for life felonies." 797 So. 2d at 1247 (emphasis added). The

statement is dictum because in neither Bover nor Carter was any issue presented regarding whether the relevant version of the habitual offender statute was the version in effect on the date of the defendant's crime, or on the date of the defendant's sentencing. Rehearing denied.

In Carter the court used the terms interchangeably. See 786 So. 2d at 1174-75, 1178 (referring to habitual offender statute in effect on the crime date), id. at 1180 (referring to version in effect at the time of sentencing). 2

Download 04-1280 QUINTANA V. STATE.pdf