5D02-2970 Sampson v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2970

Case Date: 12/02/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

DANNY SAMPSON, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed December 6, 2002 3.850 Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge. Danny Sampson, Jasper, pro se. Richard E. Doran, Attorney General, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee. SHARP, W., J. Sampson appeals from the trial court's order summarily denying his motionfiled pursuant to Florida Rule of Criminal Procedure 3.850. He raises four grounds for finding his trial counsel inadequately represented him and claims he should not have received a habitual felony offender sentence. We affirm. First, Sampson argues he should not have been sentenced as an habitual felony offender because the state failed to present certified copies of his prior convictions and a certificate which established he had never been pardoned. He complains that the state made "hearsay" reference to his prior convictions. He CASE NO. 5D02-2970

also argues the trial court made no statement that a habitualized sentence was necessary for the protection of the public. He also raises these matters in the context of ineffective assistance of trial counsel claims. The claims regarding insufficient proof of prior convictions are legally insufficient because Sampson fails to allege that he lacked the prior criminal record necessary for habitualization. Nor does the trial court have to state any set words in order to effectively impose a habitual sentence, so long as it is clear the court intends to impose such a sentence.1 Much to the contrary of Sampson's argument, section

775.084(3)(a)6,2 Florida Statutes, mandates an habitual sentence if the defendant meets the criminal record criteria set forth in the statute and only requires written reasons by the sentencing judge if he or she finds an habitualized sentence is not necessary for the protection of the public. There is no basis for Sampson's assertion that the sentencing judge must find that a habitualized sentence is necessary for the protection of
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Yates v. State, 823 So. 2d 273 (Fla. 5th DCA 2002). Section 775.084(3)(a)6., Florida Statutes, provides: For an offense committed on or after October 1, 1995, if the state attorney pursues a habitual felony offender sanctioned or a habitual violent felony offender sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection 91) for imposing such sanction, the curt must sentence the defendant as a habitual felony offender, or a habitual violent felony offender, subject t imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public. If the court finds that it is not necessary for the protection of the public to sentence the defendant as a habitual felony offender or a habitual violent felony offender, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing. Each month, the court shall submit to the office of Economic and Demographic Research of the Legislature the written reasons or transcripts in each case in which the court determines not to sentence a defendant as a habitual felony offender or a habitual violent felony offender as provided in this subparagraph. 2

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the public. Second, Sampson argues his habitualized sentence is improper in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Apprendi allows for habitualized sentences which are enhanced on the basis of a defendant's prior criminal record under statutes similar to section 775.084. See also Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001). Third, Sampson argues his trial counsel was ineffective for failing to present exculpatory evidence in the form of a taped statement from co-defendant, Nappo. In the statement Nappo allegedly admitted he committed the offense for which Sampson was being tried, while Sampson was passed out in the backseat of a car parked away from the crime scene. Nappo testified at trial and admitted to making that statement. Regardless of whether or not the tape was admissible under section 90.803(18) (admission against interest), it was merely cumulative to Nappo's trial testimony and thus if error occurred, it was not prejudicial. Fourth, Sampson claims trial counsel was ineffective for failing to depose state witness

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