HENRY FRANK KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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King appeals his sentence as a habitual offender under Florida law. The court reverses because the trial court imposed an enhanced sentence without evidence establishing that such a sentence was necessary for public protection, as required by statute.
The court reversed and remanded because the State failed to present evidence that an enhanced sentence was necessary for public protection. The trial court may impose an enhanced habitual offender sentence only if it makes findings of fact supported by evidence in the record.
[1] Sentencing a defendant as a habitual offender requires evidence that an extended term is necessary for the protection of the public.
[2] A court's findings justifying habitual offender sentencing must be based upon evidence presented in the record.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4)”
Establishes the statutory requirement that enhanced sentencing must be based on a finding of necessity for public protection
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Join FLexlaw to unlock all legal intelligenceKing was convicted by jury of sexual battery and petit larceny. Sentencing was deferred pending receipt of a presentence investigation. After receivin…
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LETTS, Judge.
This appeal centers around a sentence as a habitual offender. We reverse and remand.
Appellant was convicted by a jury of sexual battery and petit larceny and the trial court so adjudicated; however, sentencing was deferred pending the receipt of a P.S.I. Upon receipt thereof the appellant was sentenced as a habitual offender pursuant to Section 775.084, Florida Statutes (1977) from which sentence he now appeals.
Subsection (3) of the above quoted statute says: “(3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) . . . (emphasis added)
The appellant does not challenge his prior convictions nor the manner in which they were proven at the hearing. Rather, he asserts that there was no evidence adduced to establish that it was necessary, for the protection of the public, to sentence him to an extended term. We agree. In Chukes v. State, 334 So. 2d 289 (Fla.4th DCA 1976), the appellant therein made the same argument because although the State established that he had previously been convicted of a felony within five years of his subsequent conviction, they did not adduce any proof to show that an enhanced sentence was necessary for the protection of the public. In Chukes the court stated:
“It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under Section 775.084, F.S.1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with Section 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court’s findings, a defendant’s right to appellate review would be effectively stifled.” 1
We therefore vacate the enhanced sentence and remand this case for further proceedings. If at that time the court determines that appellant should also be sentenced in accordance with Section 775.084, Florida Statutes (1975), it shall make findings of fact supported by the record before doing so. The findings of fact need not be in writing; findings reported at the sentencing hearing are sufficient to satisfy the statute. Phipps v. State, 352 So. 2d 102 (Fla.1st DCA 1977).
REVERSED AND REMANDED IN ACCORDANCE HEREWITH.
CROSS and MOORE, JJ., concur. . See Also McClain v. State, 356 So. 2d 1256 (Fla.2d DCA 1978); Grimmett v. State, 357 So. 2d 461 (Fla.2d DCA 1978) and Grey v. State, 362 So. 2d 425 (Fla.4th DCA 1978).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976)
- McCLAIN v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978)
- Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978)
- Phipps v. State, 352 So. 2d 102 (Fla. 1st DCA 1977)
- Grey v. State, 362 So. 2d 425 (Fla. 4th DCA 1978)