Enrique M. Ortiz, Appellant, v. State of Florida, Appellee. (2025)

Enrique Ortiz appeals from a judgment and sentence imposed by the trial court following a probation violation hearing. Ortiz contends there was insufficient competent evidence to support the trial court's determination that he violated his probation, and that the trial court committed fundamental error when it imposed a ten-year, minimum-mandatory habitual violent felony offender sentence upon the belief that it had no discretion and that imposition of such a sentence was required.

We affirm without discussion the trial court's determination that the State established by a preponderance of the evidence that Ortiz violated his probation, but we reverse and remand for a de novo sentencing proceeding, and write to address the latter issue.

In 2017, Ortiz was charged by information (Case No. F17-15012) with aggravated assault with a firearm, possession of a firearm by a convicted felon, and felony criminal mischief. Ortiz was also charged by separate information with violating his sexual offender registration requirements (Case No. F17-18943). In 2019, pursuant to a negotiated plea agreement, he was convicted of all four charges and sentenced as a habitual violent felony offender to ten years in prison. The sentence was later mitigated to five years in prison followed by five years of probation.

Following his release from prison and the commencement of his probation, an affidavit of violation of probation was filed in May 2022, alleging Ortiz violated his probation by, inter alia, committing a burglary of an occupied conveyance and petit theft.

Following a probation violation hearing in November 2023, the trial court found Ortiz in violation of his probation by committing the new crimes of burglary and petit theft. While discussing a future date for the sentencing hearing and the potential sentences that could be imposed, the State advised the trial court that, because Ortiz qualified as a habitual violent felony offender, the trial court had no discretion to impose a sentence below the minimum mandatory sentence provided under the habitual violent felony offender statute. The trial court indicated it agreed with the State's position.

At the subsequent sentencing hearing, the trial court found Ortiz qualified as a habitual violent felony offender and sentenced him to twenty years in prison with a ten-year minimum-mandatory sentence, followed by ten years’ probation. The trial court stated that once it found Ortiz qualified as a habitual violent felony offender, the trial court believed it was “bound ․ to sentence the Defendant ․ as a habitual violent offender,” resulting in the imposition of a twenty-year sentence with a ten-year minimum mandatory.

Ortiz contends the trial court misapprehended the nature and scope of its sentencing discretion, incorrectly believing that the designation of Ortiz as a habitual violent felony offender was mandate and that, as a result, the trial court was also required to impose, at the very least, a ten-year, minimum-mandatory sentence.

Because the claimed sentencing error involves construction of a statute, we review the issue de novo. Ventura v. State, 414 So. 3d 336 (Fla. 3d DCA 2025).

Ortiz contends—correctly—that sentencing under both the habitual felony offender statute and the habitual violent felony offender statute is permissive, not mandatory. See State v. Hudson, 698 So. 2d 831, 833 (Fla. 1997); see also Frye v. State, 690 So. 2d 629, 629 (Fla. 3d DCA 1997), approved 699 So. 2d 1010 (Fla. 1997) (reversing habitual violent felony offender sentence where “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”; further holding: “On remand, the trial judge is free to exercise the sentencing discretion permitted by the habitual violent offender statute”); Zequeira v. State, 671 So. 2d 279, 279 (Fla. 3d DCA 1996) (same).

We further agree that the error is fundamental, and that the failure of the trial court to exercise its discretion (under the misapprehension that it had no discretion) requires us to reverse and remand for a new sentencing proceeding to permit the trial court to exercise its discretion in fashioning the proper sentence.¹ See Zequeira, 671 So. 2d at 279; Ellis v. State, 816 So. 2d 759 (Fla. 4th DCA 2002). We therefore vacate the sentence and remand for a de novo sentencing proceeding.

Reversed and remanded with directions.

FOOTNOTES

1.   Because this was an error in the “sentencing process”, rather than an error in the “sentencing order”, Ortiz was not required to first file in the trial court a motion under Florida Rule of Criminal Procedure 3.800(b). See, e.g., Jackson v. State, 983 So. 2d 562 (Fla. 2008).

EMAS, J.