5D03-2973 Anthony Akers v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-2973

Case Date: 01/17/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

ANTHONY AKERS, Appellant, v. Case No. 5D03-2973 STATE OF FLORIDA, Appellee. / Opinion filed January 21, 2005 Appeal from the Circuit Court for Orange County, Thomas B. Smith, Judge. Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee. SAWAYA, C.J. Anthony Akers appeals the habitual felony offender and prison releasee reoffender sentences imposed after he entered an open plea of guilty to the court to various charges. The specific issue we must resolve is whether the trial court erred in imposing the habitual felony offender and prison releasee reoffender sentences when the State failed to serve Akers with written notice of its intent to seek these enhanced sentences before Akers entered his plea. The facts surrounding the commission of the crimes to which Akers pled guilty are not

important to the resolution of the issue before us, so we will proceed to discuss the procedural background relating to the service of the written notices on Akers. Approximately two or three days after Akers entered his plea, the State filed written notice of its intent to seek enhanced penalties as a prison releasee reoffender. It is not clear when, or if, Akers was actually served with the notice. The State filed its written notice to seek a habitual felony offender sentence shortly before the sentencing hearing and actually served Akers with the notice during the hearing. Akers timely objected to the fact that he had not been timely served with either notice. The trial court, nevertheless, sentenced Akers as follows: five years in prison as a prison releasee reoffender for the offense of resisting an officer with violence (count two); five years in prison as a habitual felony offender for possession of burglary tools (count three) concurrent with count two; three years in prison as a habitual offender for the offense of criminal mischief (count four) consecutive to counts two and three; and sixty days in jail with credit for time served for petit theft. The State dismissed three other charges. The argument of lack of timely written notice of the State's intent to seek these enhanced penalties involves two interrelated yet discrete sentencing issues. While a sentence as a prison releasee reoffender or habitual felony offender results in enhanced penalties based on a defendant's prior criminal history, analysis of the pertinent statutory provisions relating to each category of sentence leads us to conclude that timely notice is required for a habitual felony offender sentence, but not for a prison releasee reoffender sentence. Since Akers' argument with respect to his prison releasee reoffender sentence affords him no right to the relief he requests, we will next address that sentence briefly. A prison releasee reoffender is defined as "any defendant who commits, or attempts 2

to commit . . . [a]ny felony that involves the use or threat of physical force or violence against an individual . . . within 3 years after being released from a state correctional facility . . . following incarceration for an offense for which the sentence is punishable by more than 1 year in this state."

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