Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 29, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1667 Lower Tribunal No. 04-35108A ________________ Bruce L. Small, Petitioner, vs. The State of Florida, Respondent. A Case of Original Jurisdiction – Habeas Corpus. Bruce L. Small, in proper person. Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for respondent. Before SCALES, LINDSEY and GORDO, JJ. SCALES, J. Bruce L. Small petitions this Court for a writ of habeas corpus. Small asserts that his thirty-year prison sentence is unconstitutional because (i) it is a cruel and unusual punishment, and (ii) it results from the application of an ex post facto law. For the reasons set forth below, we deny Small’s petition. In 2006, a jury found Small guilty of one count of selling heroin, a second- degree felony under section 893.13(1)(A)1. of the Florida Statutes. The trial court determined that Small was eligible to be sentenced under the habitual offender statute, which allowed for a sentence of up to thirty years. See § 775.084(4)(a)(2), Fla. Stat. (2006). In his petition, Small argues that his enhanced sentence represents a manifest injustice. While he does not dispute his underlying conviction, he implies that, because the maximum penalty for his crime was fifteen years, a thirty-year sentence is disproportionate and, hence, a cruel and unusual punishment. Only in rare circumstances does the length of a criminal sentence constitute a cruel and unusual punishment. Adaway v. State, 902 So. 2d 746, 750 (Fla 2005) (“[F]or a prison sentence to constitute cruel and unusual punishment solely for its length, . . . at a minimum the sentence must be grossly disproportionate to the crime.”). The length of Small’s sentence is due to the application of the habitual offender statute. Enhancement on this basis does not turn a sentence into a “grossly disproportionate” one. See Leftwich v. State, 589 So. 2d 385, 386 (Fla. 1st DCA 2 1991) (stating that a thirty-year sentence for a defendant who “fits the parameters for sentencing under the habitual violent felony offender statute” does not yield a cruel and unusual punishment). In his petition, Small also argues that the trial court violated the consitutuional prohibition on ex post facto laws. While his argument is not entirely clear, Small appears to object to the sentencing enhancement being based on “old matters not related to the crime” and on changes in the sentencing guidelines between the time of his sentencing and the time of his earlier offenses. It is well settled, however, that habitual offender sentencing laws do not violate the ex post facto prohibition. Merriweather v. State, 609 So. 2d 1299, 1299 (Fla. 1992). “A habitual offender sentence is not an additional penalty for an earlier crime; rather, it is an increased penalty for the latest crime, which is an aggravated offense because of the repetition.” Grant v. State, 770 So. 2d 655, 661 (Fla. 2000). We therefore deny the petition. 3