Petition for Writ of Certiorari — Vohn Robert Cooper, Petitioner v. Florida

APPENDIX

APPENDIX

INDEX TO APPENDIX

A. Order Dismissing Cooper’s Motion Pursuant to Rule 3.800(a), Florida Rules

of Criminal Procedure, to Correct Fundamental Sentencing Error filed April

8, 2021.

B. PCA dated March 15, 2022 and Mandate dated April 1, 2022.

|

APPENDIX

A

IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN

AND FOR DUVAL COUNTY, FLORIDA.

CASE NO.: 16-1996-CF-9251- AXXX-MA

DIVISION: CR-D

STATE OF FLORIDA

VS.

VOHN ROBERT COOPER

/

ORDER DISMISSING COOPER’S MOTION PURSUANT TO RULE 3.800(A),

FLORIDA RULES OF CRIMINAL PROCEDURE, TO CORRECT

FUNDAMENTAL SENTENCING ERROR

This matter came before this Court on the Defendant’s, by his Postconviction counsel,

“Cooper’s Motion Pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, to Correct

Fundamental Sentencing Error” filed on March 23, 2021, pursuant to Florida Rule of Criminal

Procedure 3.800(a). [Exhibit “A”, motion].

In the instant motion, the Defendant raises one ground for relief. It arises out of a

Judgment and Sentence herein entered on March 29, 2011, after the Defendant was found guilty

of Robbery with a Firearm and adjudicated by the Court to be sentenced as a Habitual Violent

Felony Offender. [Exhibits B - G]. The Defendant appealed his conviction and imposed

sentences and the First District Court of Appeal issued a mandate affirming the Defendant’s

conviction and sentence on December 30, 1997. [Exhibit H].

Defendant alleges a jury should have determined any fact that increased the statutory

maximum in his case. Therefore, his fifty-year imposed sentence for armed robbery with a

firearm is illegal because the trial judge, rather than the jury, found an increased sentence under

rend 8 7eiPNe SUPHILLIPS

Habitual Violent Felony Offender (“HVFO”) was necessary for the protection of the public. The

Defendant claims the trial judge could not make that determination according to Brown v. State,

260 So. 3d 147 (Fla. 2018). However, Brown held the jury should make a finding of

dangerousness in the context of section 775.082(10), Fla. Stat, where a defendant faces a nonstate prison sanction. In that context, written findings of the jury allow the trial judge to sentence

defendant to a state correctional facility. In Defendant’s case, the trial judge was required to

evaluate whether Defendant should be designated as an HVFO pursuant to section

775.084(3)(a)(6), not section 775.082(10). In the instant Motion, counsel acknowledges the First

DCA has rejected his argument in Armstrong v. State, 2020 WL 6126973 (Fla. Ist DCA Oct. 19,

2020). Section 775.084(3)(a)(6) does not require a trial judge to find an increased sentence under

HVFO is necessary for the protection of the public. “Rather, the judge can make the finding to

except an otherwise qualified defendant from habitual offender sentencing.” St. Louis v. State,

985 So. 2d 16, 18 (Fla. 4th DCA 2008).

This Court, after having reviewed the filed motion, record in entirety, and arguments

made by the defendant finds, the Defendant’s claims made herein are not cognizable under Rule

3.800(a), in that they cannot be determined from the face of the record. Renaud v. State, 926 So.

2d 1241, 1242 (Fla. 2006); Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002). “Rule 3.800(a) is

intended to provide relief for a narrow category of cases in which the sentence imposes a penalty

that is simply not authorized by law. Additionally, Florida Rule of Criminal Procedure 3.800(a)

provides that a court:

{Mlay at any time correct an illegal sentence imposed by it, or an

incorrect_calculation made by it in a sentencing scoresheet... .

when it is affirmatively alleged that the court records demonstrate

on their face an entitlement to that relief...

(emphasis added).

Illegal sentences include only: “(1) those sentences in excess of the statutory maximum;

(2) those sentences that fail to give credit for record jail time; and (3) those sentences that violate

double jeopardy by a post sentencing enhancement clear from the record.” Robinson v. State,

757 So. 2d 532, 533 (Fla. 4th DCA 2000). The Defendant’s claims however, do not fall within

the parameters of Florida Rule of Criminal Procedure 3.800(a). The record reflects, the

Defendant’s conviction and sentences are lawful and Defendant’s claims made in the instant

motion are legally insufficient, and therefore, the Defendant is not entitled to relief. [Exhibits

“B” — “H”}.

In view of the above, it is:

ORDERED AND ADJUDGED that: Cooper’s Motion Pursuant to Rule 3.800(a),

Florida Rules of Criminal Procedure, to Correct Fundamental Sentencing Error is hereby

DISMISSED. THIS IS A FINAL ORDER. Defendant shall have thirty (30) days from the date

of rendition of this order in which to take an appeal. \

DONE AND ORDERED in Chambers, in Jacksonville, Duval County, Florida, this)

day of April, 2021.

MARK BORELLO

CIRCUIT COURT JUDGE

Copies to:

Office of the State Attorney, Division CR-D

SAOAppealOrder@coj.net

William Mallory Kent, Esquire

Kent@williamkent.com

Vohn Robert Cooper, DOC# 144514

Columbia Correctional Institution (male)

216 S.E. Corrections Way

Lake City, Florida 32025

Case No.: 16-1996-CF-9251-AXXX-MA

Exhibits: A - H

Ig

CERTIFICATE OF SERVICE

I do certify that a copy hereof has been furnished to th fendant by United States mail

this G_ dayof fp \ , 2021.

Deputy Clerk

Filing # 123639075 E-Filed 03/23/2021 09:01:24 PM

IN THE CIRCUIT COURT

FOURTH JUDICIAL CIRCUIT

DUVAL COUNTY, FLORIDA

VOHN ROBERT COOPER,

Defendant-Petitioner

vs. CASE NUMBER 1996-CF-9251

DIVISION CR-D

STATE OF FLORIDA,

Respondent

/

COOPER’S MOTION PURSUANT TO RULE 3.800(a), FLORIDA

RULES OF CRIMINAL PROCEDURE, TO CORRECT

FUNDAMENTAL SENTENCING ERROR

Comes now VOHN ROBERT COOPER (“Cooper”), by his undersigned postconviction counsel, WILLIAM MALLORY KENT, pursuant to Rule 3.800(a),

Florida Rules of Criminal Procedure, and moves this Honorable Court to correct the

fundamental sentencing error in his case.

STATEMENT OF THE CASE AND FACTS

Over defense objection’ Cooper was sentenced December 9, 1996 as a habitual

violent felony offender to an enhanced sentence of fifty (50) years imprisonment? for

' A true and correct copy of the transcript of the sentencing proceeding

including this objection is hereunto annexed as Exhibit A and by this reference made

a part hereof.

> A true and correct copy of the judgment and habitual offender sentencing

order is hereunto annexed as Exhibit B and by this reference made a part hereof.

Exhibit } A

ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 03/24/2021 08:13:16 AM

the offense of armed robbery with a firearm, in violation of Florida Statutes, §

812.13(2)(A), a first degree felony punishable by life imprisonment. The robbery was

alleged to have occurred July 27, 1996. The Florida Sentencing Guidelines in effect

at the time of this offense were mandatory, unless the court made written findings to

justify a departure sentence. Cooper’s guideline range was 54.75 months minimum

to 91.25 months maximum.’ To impose an upward departure sentence a judge was

required to file contemporaneous written reasons which had to be based on legally

accepted departure grounds. No written reasons for a departure sentence were filed

and indeed the sentencing judge did not intend to sentence Cooper as a departure

from the guidelines, but instead intended to sentence Cooper as a violent habitual

felony offender.

The sentencing judge found Cooper to be a habitual violent felony offender

pursuant to Florida Statutes, § 775.084. Section 775.084(3)(a)6 required the court to

make a finding of dangerousness as a predicate requirement to habitualization.

6. For an offense committed on or after October 1, 1995, if the state

attorney pursues a habitual felony offender sanction 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 (1) for imposing such

sanction, the court must sentence the defendant as a habitual felony

> A true and correct copy of the guideline scoresheet is hereunto annexed as

Exhibit C and by this reference made a part hereof.

Page 2

offender or a habitual violent felony offender, subject to 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 Sentencing

Commission the written reasons or transcripts in each case in which the

court determines not to impose a habitual felony offender sanction or a

habitual violent felony offender sanction.

Judge Brad Stetson made the required finding.

Had the sentencing judge not made the dangerousness finding the Court would

have been limited to sentence Cooper to the maximum guideline sentence of 91.25

months.

Page 3

STATEMENT OF THE ISSUE

THE SENTENCING JUDGE VIOLATED ARMSTRONG’S

SIXTH AMENDMENT RIGHT TO HAVE A JURY DETERMINE

ANY FACT THAT INCREASED THE STATUTORY MAXIMUM

IN HIS CASE.’

SUMMARY OF ARGUMENT

The United States Supreme Court has declared that the "statutory maximum for

Apprendi *purposes is the maximum sentence a judge may impose solely on the basis

of the facts reflected in the jury verdict, or admitted by the defendant." Blakely v.

Washington, 542 U.S. 296, 303 (2004). This principle is drawn from the Supreme

Court's previous ruling in Apprendi: "Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530

U.S. at 490. In Blakely, the Supreme Court simply clarified Apprendi by further

defining "statutory maximum" as "the maximum sentence a judge may impose solely

g ry p

* This argument has been rejected by the First District Court of Appeal in an

appeal argued by undersigned counsel, Armstrong v. State, 2020 Fla. App. LEXIS

14702 * | 45 Fla. L. Weekly D 2369 | 2020 WL 6126973 (Fla. 1* DCA 2020).

Counsel has carried the argument forward in a federal habeas petition which is

pending before the Honorable Timothy Corrigan in the United States District Court

for the Middle District of Florida case number 3:21-cv-00294-TJC-JBT.

> Apprendi v. New Jersey, 530 U.S. 466 (2000).

Page 4

on the basis of the facts reflected in the jury verdict or admitted by the defendant."

Blakely, 542 U.S. at 303 (emphasis in original).

Under the Sixth Amendment (applicable to the states under the Fourteenth

Amendment), only a jury can make findings to authorize a sentence beyond the

statutory maximum.

The habitual offender statute, Florida Statutes, § 775.084(3)(a)(6), requires a

finding that habitualization is necessary for the “protection of the public” before an

habitual offender sentence may be imposed.

The statutory maximum for purposes of Cooper’s sentencing was the maximum

guideline sentence available under Cooper’s guideline scoresheet, 91.25 months. See

United States v. Booker, 543 U.S. 220 (2005). The sentencing judge, without a

special jury verdict or admission of the defendant, made the finding required pursuant

to Florida Statutes, § 775.084(3)(a)(6), that habitualization was necessary “for the

protection of the public,” and upon this judicial finding imposed a sentence more than

42 years in excess of that otherwise applicable under Booker.

This motion is controlled by the Florida Supreme Court’s decision in Brown

v. State, 260 So. 3d 147 (Fla. 2018), which held that a comparable judicial fact

finding under Florida Statutes, § 775.082(1), was unconstitutional. This Court is

bound by the Supreme Court’s holding and reasoning in Brown.

Page 5

ARGUMENT

THE SENTENCING JUDGE VIOLATED ARMSTRONG’S

SIXTH AMENDMENT RIGHT TO HAVE A JURY DETERMINE

ANY FACT THAT INCREASED THE STATUTORY MAXIMUM

IN HIS CASE

Cooper was convicted of a single count of armed robbery with a firearm, in

violation of Florida Statutes, § 812.13(2)(a), which although it is a first degree felony

punishable by up life in prison, under the guidelines in effect at the time of his

offense, sentencing was cabined by sentencing guidelines which limited Cooper’s

sentence to 91.25 months. The sentencing judge determined that Cooper was a

habitual violent felony offender, based on his finding that it was necessary to do so

for the “protection of the public.”

Having made that determination the sentencing judge exceeded the otherwise

applicable maximum guideline sentence and imposed a sentence of fifty (50) years

imprisonment.° It is simply indisputable that the “statutory maximum,” as that term

is understood under the United States Supreme Court’s Apprendi and Booker

jurisprudence, means the guideline range without any departure:

Title 18 U.S.C. § 3553(b) [18 USCS § 3553(b)] directs that a court

"shall impose a sentence of the kind, and within the range" established

° It is no answer to this to say that the court could have imposed an upward

departure sentence up to the nominal statutory maximum of life, because it did not do

so, and under Booker it could not do so.

Page 6

by the Guidelines, subject to departures in specific, limited cases.

Because they are binding on all judges, this Court has consistently held

that the Guidelines have the force and effect of laws. Further, the

availability of a departure where the judge "finds . . .an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in formulating the

guidelines that should result in a sentence different from that described,"

§ 3553(b)(1), does not avoid the constitutional issue. Departures are

unavailable in most cases because the Commission will have adequately

taken all relevant factors into account, and no departure will be legally

permissible. In those instances, the judge is legally bound to impose a

sentence within the Guidelines range.

United States v. Booker, 543 U.S. 220, 226 (2005) (emphasis supplied).

Cooper was sentenced outside his mandatory guideline range based on the

habitual violent felony offender finding which was based on judicial fact finding in

violation of Apprendi.

With Apprendi/Blakely/Booker problems there are classically two questions.

The first is the Apprendi question: has there been an impermissible fact finding

- that is, was the finding which enhanced the sentence a finding of fact which only a

jury can make, or was the finding something that is committed to the authority of a

judge alone to determine - typical of this would be a finding of a prior conviction,

which the courts have continued to permit as a matter not subject to genuine dispute

and readily determinable from court records.

The second is the Blakely/Bookwe question: has the Apprendi fact finding

Page 7

increased the statutory maximum sentence?

There can be no dispute that the sentencing judge’s determination that the

“protection of the public” required a habitual offender sentence was an

Apprendi prohibited fact finding.

That this is so is dictated by the recent decision of the Florida Supreme Court

in Brown v. State, 260 So. 3d 147 (Fla. 2018), which held that a comparable judicial

fact finding under Florida Statutes, § 775.082(10), was unconstitutional under

Apprendi. Brown governs the determination of this motion.

The judicial finding made in Brown under § 775.082(10) was whether the a

non-state prison sanction for the particular defendant would “present a danger to the

public.” The finding required in Cooper’s case under § 775.084(3)(a)(6) was whether

a habitual offender sentence was necessary for “the protection of the public.” The

two findings are synonymous. There is no difference between the two findings. The

Florida Supreme Court’s decision in Brown found that the determination of

dangerousness in Brown was a decision only a jury could make; a judge’s

determination violates the Sixth Amendment:

Accordingly, we hold that subsection (10) violates the Sixth

Amendment in light of Apprendi and Blakely based on its plain language

requiring the court, not the jury, to find the fact of dangerousness to the

public necessary to increase the statutory maximum nonstate prison

sanction. Cf. Booker v. State, 244 So. 3d 1151, 1164 (Fla. lst DCA

Page 8

2018) (holding that "the second sentence of subsection (10) is

unconstitutional under the Sixth Amendment as applied to [the

defendant)" because "the trial judge's factual findings— and thereby [the

defendant's] enhanced sentence— were neither based on a jury finding

that he poses a ‘danger to the public nor limited to only the fact that [the

defendant] had prior convictions"); cf. also Plott v. State, 148 So. 3d 90,

95 (Fla. 2014) ("hold[ing] that upward departure sentences that are

unconstitutionally enhanced in violation of Apprendi and Blakely

patently fail to comport with constitutional limitations, and

consequently, the sentences are illegal under rule 3.800(a)").

Brown, at 150.

Therefore, Cooper’s sentence must be vacated.

ERROR IS COGNIZABLE UNDER RULE 3.800(a)

This was an error cognizable under Rule 3.800(a), because the sentence was

imposed in violation of the Florida and United States Constitutions.

As is evident from our recent holding in Hopping, we have rejected the

contention that our holding in Davis mandates that only those sentences

that facially exceed the statutory maximums may be challenged under

rule 3.800(a) as illegal. Further, we agree with the observations of Judge

Barkdull in the Third District's decision in Hopping that a sentence that

does not mandate credit for time served would be illegal since a trial

court has no discretion to impose a sentence without crediting a

defendant with time served. A sentence that patently fails to comport

with statutory or constitutional limitations is by definition “illegal”.

State v. Mancino, 714 So.2d 429, 433 (Fla.1998) (emphasis supplied).

Page 9

REMEDY

Cooper’s sentence must be vacated and his case set for a de novo resentencing

at which the maxium sentence is 91.25 months.’

In holding that Apprendi and Blakely apply to resentencings regardless

of the finality of the defendant's conviction before they issued, the First

District implicitly followed longstanding precedent of this Court

regarding the nature of resentencing. As we explain below, two

principles support our holding that these two United States Supreme

Court cases apply to all resentencing proceedings held after they issued:

(1) resentencing proceedings are de novo; and (2) the decisional law in

effect before an appeal is final applies to the proceeding. . . .

First, this Court has long held that where a sentence has been reversed

or vacated, the resentencings in all criminal proceedings, including

death penalty cases, are de novo in nature. See Morton v. State, 789 So.

2d 324, 334 (Fla. 2001). (reasoning that in a new penalty phase

"resentencing should proceed de novo on all issues bearing on the

proper sentence” (quoting Teffeteller v. State, 495 So. 2d 744, 745 (Fla.

1986))); see also Preston v. State, 607 So. 2d 404, 408 (Fla. 1992)

(referring to new penalty phase proceeding as a "clean slate" and stating

that "a resentencing is a completely new proceeding"). This means that

when a defendant is resentenced, "the full panoply of due process

considerations attach." State v. Scott, 439 So. 2d 219, 220 (Fla. 1983)

("[O]nce the court has determined that the sentence was indeed illegal

and the prisoner is entitled to a modification of the original sentence or

the imposition of a new sentence, the full panoply of due process

considerations attach."); see Trotter v. State, 825 So. 2d 362, 368 (Fla.

2002) ("We agree with the district courts of appeal that a resentencing

pursuant to Heggs is a de novo sentencing proceeding that must comport

with constitutional requirements.").

” Because Cooper has served far in excess of 91.25 months this Court should

order his immediate release pending resentencing.

Page 10

State v. Fleming, 61 So. 3d 399, 405-06 (Fla. 2011).

CONCLUSION

Defendant Petitioner Vohn Robert Cooper requests this Honorable Court

vacate the judgment, conviction and sentence, order his immediate release, and set the

matter for de novo resentencing at which the maximum sentence would be 91.25

months.

Respectfully submitted,

KENT & McFARLAND

ATTORNEYS AT LAW

s/ William Mallory Kent

William Mallory Kent

Florida Bar No. 0260738

24 North Market Street, Suite 300

Jacksonville, Florida 32202

(904) 398-8000 Office phone

(904) 662-4419 Cell phone

(904) 348-3124 Fax

kent@williamkent.com

Page 11

CERTIFICATE OF SERVICE

THEREBY CERTIFY that an e-filed copy of the foregoing document has been

furnished by e-service to the Office of the State Attorney, 311 West Monroe Street,

Jacksonville, Florida, 32202, at sao4duvalcriminal@coj.net, this the 23" day of

March, 2021.

s/William Mallory Kent

William Mallory Kent

Page 12

EXHIBITS

Sentencing Transcript

Judgment and Habitual Offender Order

Guideline Scoresheet

Page 13

EXHIBIT A

SENTENCING TRANSCRIPT

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468

IN THE CIRCUIT COURT OF THE FOURTH

JUDICIAL CIRCUIT, IN AND FOR DUVAL

COUNTY, FLORIDA.

STATE OF FLORIDA Case No. 96-9251-CF

-vs-

VOHN COOPER, Division Cr-D

Defendant.

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PROCEEDINGS taken on December 9, 1996

before the Honorable Brad Stetson, Judge of the

Circuit Court, Division Cr-D, in the Duval County

Courthouse, Jacksonville, Florida, and as reported

by Faye M. Gay, Registered Professional Reporter,

Registered Merit Reporter, Certified Realtime

Reporter.

469

APPEARANCES :

PATRICIA DODSON and BERNARD de la RIONDA,

Appearing on behalf of the State.

THOMAS ROSENBLOOM,

Appearing on behalf of the Defendant.

470

THE COURT: Bring out Vohn Cooper.

(Defendant present.)

MR. ROSENBLOOM: Good morning, Judge.

THE COURT: Good morning.

THE COURT: You're Vohn Cooper, sir?

DEFENDANT COOPER: Yes, sir.

THE COURT: We're here for sentencing

today. There's also a hearing.

THE CLERK: Right. We had to stop the

sentencing to come up with the --

THE COURT: What?

THE CLERK: The probation hearing.

THE COURT: Yeah, hearing on the affidavit

for violation of probation. All right. For

the record now, we never did set this down for

hearing on the probation affidavit. The State

needs to tell the Court when you want to do

things like that because, frankly, I can't

think of things like that all the time. When I

was a prosecutor, I used to tell the Court when

I wanted to be heard on the hearing at the same

time as the trial, but no one has said that to

me and I didn't think of it, but it's my fault

and I've relied upon the State to remind me of

things like that, so here we are.

24

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471

Again, the question is what do we do now.

Can the Court go back and rely upon the trial

testimony or not? Does anybody know?

MR. ROSENBLOOM: Judge, I haven't

researched that, but we would stipulate that

according to the affidavit from the probation

office that, yes, my client did get arrested

and that if there's a violation --

THE COURT: Can we quiet that down?

MR. ROSENBLOOM: -- we'd stipulate, Judge,

that the allegation of the rule that my client

did get re-arrested and if that's a violation

we'd stipulate to to that, Judge. We should be

THE COURT: Would you stipulate he also

got convicted by a jury?

MR. ROSENBLOOM: Yes, sir, Judge.

THE COURT: All right. Does the State

have any case law on this?

MR. De la RIONDA: No, sir. Ms. Dodson is

here. It's her case.

THE COURT: I would think the Court could

rely upon a stipulation of an arrest and

conviction beyond a reasonable doubt.

MR. De la RIONDA: I think you can.

24

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472

THE COURT: The law would certainly be

illogical if that weren't true.

Let me see the affidavit, please.

I passed it last time in court to today

for a hearing on the affidavit for violation of

probation so the State could be prepared to

prove their case or give me some authority

showing me that we don't need to go any

further.

MR. De la RIONDA: Your Honor, it's my

understanding that Mr. Rosenbloom said he was

stipulating to the affidavit.

THE COURT: Did you say that?

MR. ROSENBLOOM: Yes, Judge, I would --

THE COURT: I thought you said you

stipulated there was an arrest. That's the way

I heard it.

MR. ROSENBLOOM: That is one of the

allegations.

THE COURT: I have to rely upon what I

heard.

MR. ROSENBLOOM: That is the main

allegation, Judge, I would submit. There are a

couple of other allegations --

THE COURT: Well, there's some technical

473

violations also. Let's make it clear now. Are

you stipulating to those, that the State can

prove those or not?

MR. ROSENBLOOM: Judge, yes, sir. We say

as far as the violation, though, it would just

be the arrest that should be the violation

because if they're saying --

THE COURT: Then the answer is not yes,

the answer is no, you're not stipulating to the

technical violations. I asked you are you

stipulating to the technical violations. You

said, yes, but what we're really stipulating to

is the arrest. Well, that's not -- you're not

stipulating to the technical violations then.

I just want to get it clear.

MR. ROSENBLOOM: I would say no, Judge,

but if he didn't finish community service hours

I would stipulate to that, but I don't think

that should be a violation because the

probation was not completed yet; he could have

completed the community service hours, and

that's one of the allegations.

THE COURT: The record is clear to me, at

least at this point, there is no stipulation to

any of the technical violations so let's focus

24

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474

on the arrest. He was arrested and he was

convicted and does the defense stipulate that

that constitutes a factual basis for the

violation of probation?

MR. ROSENBLOOM: Yes, Judge.

THE COURT: And I'll proceed to

sentencing.

MR. ROSENBLOOM: Judge, could we request

the sentencing be postponed until after the

sentencing on the trial case, Judge? That was

what we handled first and clearly the State

wants to try and expedite the sentencing on a

violation to try and increase the sentence on

the trial, but, Judge, it's our position the

trial came first and it should not be -- any

sentence should not be increased or aggravated

just because of the violation of probation is

now added into my client's record. As it is

now, it makes a bit of difference. I mean he

has no prior convictions for felonies.

MR. De la RIONDA: That counts as a

conviction for sentencing purposes, doesn't it?

MS. DODSON: Yes, it does. Statutorily it-

does.

THE COURT: What is the issue? I've lost

24

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475

track of the issue here. I've gotten so

confused here. Is the issue -- does he need to

be adjudicated guilty of this probation case to

be eligible to be sentenced as an habitual

offender or not?

MS. DODSON: Under the statute I don't

believe so, Your Honor.

THE COURT: What is the purpose -- is the

State asking me to --

MR. De la RIONDA: Yeah, that counts as a

conviction for HO also. If he's on probation,

it's a conviction. I'm sorry, Judge. Being

aware of the HO law, if he's on probation for

aggravated assault, then that is a conviction

per the HO statute. That is covered under the

statute. That counts as a conviction for HO.

THE COURT: Even though it's a withhold of

adjudication?

MR. De la RIONDA: Even though it's a

withhold. If he's on probation at the time he

commits the new crime, then that is a

conviction under Statute 775.084.

THE COURT: Because everybody is acting

like it's necessary to adjudicate him guilty

before he could be declared an habitual

24

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476

offender, the defense is certainly acting like

that and in my opinion the State is also,

maybe the smartest thing we can do, in an

abundance of caution, is to adopt the State's

argument, but I'd like to know what the law

is. There's been a lot of confusion.

MR. De la RIONDA: I'1l find the statute.

THE COURT: This case is in recess until

the State can get their act together. It's too

much bickering going on back and forth.

Temporarily pass the case.

MR. De la RIONDA: May I see the statute

book to show the Court?

(Further calendar proceedings.)

THE COURT: Are you all ready to proceed

with the Cooper case?

MR. ROSENBLOOM: Yes, sir.

THE COURT: Bring Mr. Cooper back.

(Defendant present.)

THE COURT: Okay. This record now

hopefully is not hopelessly confused, but it's

close to it. The defendant has been convicted

by a jury of armed robbery. That's one of the

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