FREDRICK IRA IBBITSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court must make a finding on the record that sentencing a defendant as a habitual offender is necessary for the protection of the public.
Appellant was sentenced under the habitual offender statute for resisting an officer with violence. He challenged the sentence, claiming the state did…
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SCHEB, Judge.
Appellant challenges a two-year sentence imposed upon him under § 775.084, Fla.Stat. (1977), the habitual offender statute, for resisting an officer with violence. Appellant complains that (1) the state did not adequately prove his previous convictions or the necessity for declaring him a habitual felony offender, and (2) the court failed to make findings required by the habitual offender statute. From an examination of the record we find no merit in appellant’s first contention, but as to the second, we believe appellant is correct.
In Grimmett v. State, 357 So. 2d 461 (Fla.2d DCA 1978), this court held that under § 775.084(4)(b) the trial court must make a finding on the record that the sentencing of a defendant as a habitual offender is necessary for the protection of the public.1 In the case before us the court did not make the required finding.
Accordingly, we affirm appellant’s conviction, but we set aside his sentence and remand this case for a new sentencing hearing at which appellant must be present.2
BOARDMAN, Acting C. J., and OTT, J., concur. . We have held that the trial court need not state its reasons for such a finding as long as they are evident from the record. McClain v. State, 356 So. 2d 1256 (Fla.2d DCA 1978).
. In setting aside appellant’s sentence we realize that it is not excessive since he could have received five years in prison without reference to the habitual offender statute. §§ 775.-082(3)(d) and 843.01, Fla.Stat. (1977). However, because appellant has been marked a habitual offender, we believe that in all fairness we must require the new sentencing hearing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Levy v. State, 375 So. 2d 606 (Fla. 2d DCA 1979)…hat a finding was made that the sentencing of Levy as an habitual offender was necessary for the protection of the public. It is required that this finding be made on the record before one may be sentenced as an habitual offender. Ibbitson v. State, 366 So. 2d 499 (Fla.2d DCA 1979); Grimmett v. State, 357 So. 2d 461 (Fla.2d DCA 1979). Consequently, we vacate the sentence and remand this matter to the trial court for a new sentencing hearing. GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.…
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Wright v. State, 455 So. 2d 1341 (Fla. 3d DCA 1984)…PER CURIAM. Affirmed. McDonald v. State, 423 So. 2d 997 (Fla. 3d DCA 1982); Jones v. State, 387 So. 2d 401 (Fla. 5th DCA 1980); Ibbitson v. State, 366 So. 2d 499 (Fla. 2d DCA 1979); McClain v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978).…
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Hunter v. State, 388 So. 2d 3 (Fla. 2d DCA 1980)…position of the enhanced sentence was necessary for the safety of the public and (2) to specify the evidence he relied upon in sentencing appellant as a career criminal, as required by Section 775.-084(3), Florida Statutes (1977). Ibbitson v. State, 366 So. 2d 499 (Fla. 2d DCA 1979) and Fry v. State, 359 So. 2d 584 (Fla. 2d DCA 1978). We therefore vacate the enhanced sentence. Accordingly, the judgment is affirmed, but the sentence is vacated and the cause remanded for resentencing. GRIMES, C. J., and BOA…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCLAIN v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978)
- Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978)