Opinion
No. 89-3400.
April 29, 1991. Rehearing Denied May 31, 1991.
Appeal from the Circuit Court, Duval County, R. Hudson Olliff, J.
Barbara M. Linthicum, Public Defender, Kathleen A. Stover, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., for appellee.
Relying upon Ree v. State, 565 So.2d 1329 (Fla. 1990), Kilo contends that he was improperly adjudged and sentenced as an habitual offender under Section 775.084(1)(a), Florida Statutes (1988 Supp.), because the sentencing judge had drafted in advance of the habitual offender proceeding a written order containing the requisite 775.084 findings which order the judge entered in open court at the conclusion of the habitual offender proceeding.
Assuming, without deciding, that the principles enunciated in Ree are applicable to an habitual offender sentencing proceeding, the sentencing in the instant case occurred on December 11, 1989. In State v. Lyles, 576 So.2d 706 (Fla. 1991), the supreme court clarified that Ree applies prospectively to sentences that were imposed after the filing of the final opinion in Ree, or after July 19, 1990. Therefore, the principles discussed in Ree have no applicability to appellant's sentence.
Appellant also attacks Section 775.084(1)(a) on various constitutional grounds including due process, equal protection, and separation of powers. We affirm on authority of Bouie v. State, 570 So.2d 1148 (Fla. 1st DCA 1990), and Atkinson v. State, 570 So.2d 1147 (Fla. 1st DCA 1990), citing to Smith v. State, 567 So.2d 55 (Fla. 2d DCA 1990); Arnold v. State, 566 So.2d 37 (Fla. 2d DCA 1990); Roberts v. State, 559 So.2d 289 (Fla. 2d DCA 1990), dismissed 564 So.2d 488 (Fla. 1990); King v. State, 557 So.2d 899 (Fla. 5th DCA 1990), rev. denied, 564 So.2d 1086 (Fla. 1990). Cf. Barber v. State, 564 So.2d 1169 (Fla. 1st DCA 1990).
AFFIRMED.
ERVIN and NIMMONS, JJ., concur.
ZEHMER, J., specially concurs with opinion.
I concur in the affirmance, but do so with a word of caution. The thrust of appellant's argument against the trial court's having come to the hearing with a sentencing order already prepared strongly suggests that the court had made up its mind on the sentence to be imposed without first hearing from the defendant. No doubt the supreme court's decision in Ree v. State, 565 So.2d 1329 (Fla. 1990), has put considerable pressure on trial judges to prepare and execute written sentencing orders at the time of hearing, and a simple method for meeting those requirements is to bring a prepared order to the hearing. I have no doubt that such prior preparation of the order in this case did not unduly influence the trial court's decision on the sentence imposed and that appellant has shown no significant prejudice due to this fact. However, the appearance of having prejudged the issue before hearing from the parties is a necessary concomitant of a court's preparing such findings and sentence prior to the hearing at which the court is to receive evidence or other information that will affect the ultimate decision. Trial courts should be mindful of this fact and take precautions to assure the parties and the public that the court's ultimate decision is properly based on the information presented and considered at the hearing.