Antonio Swinson v. State Florida

Swinson appeals from his judgments of guilt and sentences for conspiracy to traffic in cocaine,1{/Cite} four counts of possession of cocaine,2{/Cite} three counts of sale of cocaine,3{/Cite} and a weapons charge.4{/Cite} He raises various issues to challenge his convictions, all of which we find lack merit. However, we do find two sentencing errors were made: 1) Swinson should not have been sentenced as an habitual offender because his sentencing was based on two Georgia convictions and 2) a multiplier should not have been used in calculating legal constraint points. Accordingly, we vacate the sentences and remand for resentencing. The habitual offender statute, section 775.084, was amended effective October 1, 1989, to allow consideration of out-of-state convictions.5{/Cite} However, the crimes for which Swinson was convicted and sentenced in this case were committed between May 2, 1989 and August 31, 1989. Under the 1988 version of this statute, the court may impose an extended term of imprisonment if it finds the defendant ""has previously been convicted of two or more felonies in this state. . . ."" (emphasis added). The 1988 version did not permit consideration of out-of-state criminal convictions in establishing habitual offender status.6{/Cite} Defense counsel failed to challenge Swinson's habitual offender status at sentencing on the ground that the 1988 version should have been applied rather than the 1989 version. But he did object to the classification on other grounds. We can consider this error on appeal because it is a substantive, constitutional one,7{/Cite} and one that is ""fundamental,"" in the sense that it need not be ""preserved"" below to be raised on appeal.8{/Cite} A court cannot apply a substantive criminal law to an event which precedes its effective date. To do so would make it an ex posto facto law. Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987); Lee v. State, 294 So.2d 305 (Fla. 1974).