Frye v. State

District Court of Appeal of Florida

Frye v. State

690 So. 2d 629, 1997 Fla. App. LEXIS 1569, 1997 WL 80348

CourtDistrict Court of Appeal of Florida

DecidedFebruary 26, 1997

DocketNo. 96-1504

StatusPublished

Cited by2 cases

This text of 690 So. 2d 629 (Frye v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frye v. State, 690 So. 2d 629, 1997 Fla. App. LEXIS 1569, 1997 WL 80348 (Fla. Ct. App. 1997).

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Opinion

PER CURIAM.

Defendant David Frye was convicted by a jury on three counts of armed robbery and one count of armed burglary with assault or battery. The trial court sentenced Frye to twenty-five years in state prison, with a fifteen-year mandatory minimum term as a habitual violent offender and a three-year mandatory minimum for possession of a firearm on each count to run concurrently. The record reflects that the trial judge was under the mistaken impression that, when sentencing a defendant as an habitual offender, he had no discretion and was required to impose the mandatory minimum term. As the imposition of mandatory minimum terms is permissive, not mandatory,¹ we remand the case for resentencing. Zequeira v. State, 671 So.2d 279 (Fla. 3d DCA 1996). On remand, the trial judge is free to exercise the sentencing discretion permitted by the habitual violent offender statute.

We also note concerning resentencing that, as to the conviction for burglary with assault or battery (a life felony), at the time of the offense (August 25, 1994), life felonies were not subject to enhancement under the habitual violent offender statute. Section 775.084, Florida Statutes (1993); Parnell v. State, 627 So.2d 1246 (Fla. 3d DCA 1993), rev. denied, 637 So.2d 236 (Fla.1994). As to the conviction for burglary with assault or battery the [630]*630sentence is vacated and remanded for imposition of a guideline sentence.

Remanded for resentencing.

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PER CURIAM.

Defendant David Frye was convicted by a jury on three counts of armed robbery and one count of armed burglary with assault or battery. The trial court sentenced Frye to twenty-five years in state prison, with a fifteen-year mandatory minimum term as a habitual violent offender and a three-year mandatory minimum for possession of a firearm on each count to run concurrently. The record reflects that the trial judge was under the mistaken impression that, when sentencing a defendant as an habitual offender, he had no discretion and was required to impose the mandatory minimum term. As the imposition of mandatory minimum terms is permissive, not mandatory,¹ we remand the case for resentencing. Zequeira v. State, 671 So.2d 279 (Fla. 3d DCA 1996). On remand, the trial judge is free to exercise the sentencing discretion permitted by the habitual violent offender statute.

We also note concerning resentencing that, as to the conviction for burglary with assault or battery (a life felony), at the time of the offense (August 25, 1994), life felonies were not subject to enhancement under the habitual violent offender statute. Section 775.084, Florida Statutes (1993); Parnell v. State, 627 So.2d 1246 (Fla. 3d DCA 1993), rev. denied, 637 So.2d 236 (Fla.1994). As to the conviction for burglary with assault or battery the [630]*630sentence is vacated and remanded for imposition of a guideline sentence.

Remanded for resentencing.

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690 So. 2d 629, 1997 Fla. App. LEXIS 1569, 1997 WL 80348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frye-v-state-fladistctapp-1997.

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