JERRY v. STATE (2021)

Once again, Charles Jerry, Jr. challenges his habitual offender sentence. Jerry was sentenced over twenty years ago and has contested that sentence ever since. His repeated complaint is that he did not have the necessary predicate convictions to qualify as a habitual felony offender (“HFO”). Such a claim has previously been denied by this Court. E.g., Jerry v. State, 293 So. 3d 1044 (Fla. 5th DCA 2020). While Jerry's history of continual filings suggests that this opinion will not dissuade his efforts, we shall explain, as did numerous lower court orders, why his challenge must fail.¹

The relevant statute at the time of Jerry's sentencing provided that a defendant could be deemed an HFO if he or she had “previously been convicted of any combination of two or more felonies.” § 775.084(1)(a)1., Fla. Stat. (1997). However, that statute also read: “In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5), Fla. Stat.

Jerry has conceded that he has three prior felony convictions. His argument is that two of the three convictions occurred simultaneously, therefore rendering his classification as an HFO illegal. The flaw in Jerry's argument appears to be his belief that neither of the two simultaneous convictions can serve as predicates for his habitualization. However, the plain language of the statute indicates otherwise, as does the prevailing case law.

Section 775.084 mandates that a prior felony conviction cannot count unless it was “sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5), Fla. Stat. Thus, of the two simultaneous convictions, one of them counts and the other does not. This leaves Jerry with one qualifying prior conviction out of those two (it does not matter which), and one uncontested third prior conviction, leaving a total of two lawful predicate convictions. Therefore, Jerry was properly deemed an HFO.

Jerry relies upon two cases in support of his position, Alfonso v. State, 659 So. 2d 478, 478 (Fla. 4th DCA 1995), and Smith v. State, 766 So. 2d 1257 (Fla. 5th DCA 2000). Alfonso is distinguishable because the lower court imposed an HFO sentence based solely upon two simultaneous convictions. 659 So. 2d at 478. Although the sentencing order in Alfonso recited “two other non-contemporaneous convictions,” those convictions were “clearly not relied on at the sentencing hearing to support the enhanced HFO sentence.” Id. Jerry makes no such allegation here.

In fairness to Jerry, Smith contains language which, at best, is unartful. In Smith, we stated that, “Three felony convictions were relied upon by the sentencing court. Two of those convictions were entered at the same time, and therefore cannot be counted against Smith under the statute.” 766 So. 2d at 1257. In support of that statement, we relied upon Prince v. State, 684 So. 2d 850 (Fla. 2d DCA 1996), Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995), and Alfonso, 659 So. 2d at 478. However, none of those cases stood for the proposition that neither of the simultaneous convictions could serve as a predicate. In our independent review, we have found no case that supports such an assertion; to the contrary, other courts have found that simultaneous convictions may serve as a single predicate offense. See, e.g., Westberry v. State, 906 So. 2d 1141, 1142 (Fla. 3d DCA 2005); Johnson v. State, 790 So. 2d 1163 (Fla. 2d DCA 2001).

Due to Jerry's repeated appeals to this Court, we caution him that further filings in this case may result in sanctions. See Cokley v. State, 981 So. 2d 582, 582 (Fla. 5th DCA 2008).

AFFIRMED.

While I agree with the majority's analysis and conclusion, I would not reach the substantive issue of Jerry's previous convictions because we have already evaluated his argument three times. See Jerry v. State, 293 So. 3d 1044 (Fla. 5th DCA 2020); Jerry v. State, 277 So. 3d 590 (Fla. 5th DCA 2019); Jerry v. State, 251 So. 3d 157 (Fla. 5th DCA 2018). Furthermore, the trial court has addressed this issue five times. Therefore, the doctrines of law of the case and collateral estoppel bar Jerry's latest attempt. See, e.g., State v. McBride, 848 So. 2d 287, 290–91 (Fla. 2003); Hawn v. State, 840 So. 2d 352, 354 (Fla. 5th DCA 2003) (citing Raley v. State, 675 So. 2d 170, 173–74 (Fla. 5th DCA 1996)).

FOOTNOTES

1.   Jerry also challenges the lower court's prohibition from further pro se filings in this case unless through counsel. Jerry's contention that the lower court erred in so doing without an attachment of records is without merit.

PER CURIAM.

COHEN and WALLIS, JJ., concur. TRAVER, J., concurs, with opinion.