TONY HYSMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a prior conviction of the same crime once previously does not qualify a defendant as a habitual misdemeanant under the statute.
[1] A defendant may not be sentenced as a habitual misdemeanant based on a single prior conviction of the same crime.
[2] To qualify for sentencing as a habitual misdemeanant, a defendant must have at least two prior convictions for the same crime, committed at different times after the defe…
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Join FLexlaw to unlock all legal intelligenceHysmith was convicted of resisting an officer without violence and sentenced to an extended term as a habitual misdemeanant based on one prior convict…
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ROBERT P. SMITH, Jr., Acting Chief Judge.
Hysmith appeals from a judgment and sentence imposed on him for the first degree misdemeanor of resisting an officer without violence to his person. Section 843.02, Florida Statutes (1977). There is no merit in Hysmith’s attack on the judgment. Clark v. State, 363 So. 2d 331 (Fla.1978). There is merit, however, in Hysmith’s contention that the court erred in imposing an extended misdemeanor sentence of three years, because Hysmith was not shown to have at least twice previously been convicted of the same crime committed at different times after the defendant’s 18th birthday
Section 775.084(l)(b)l, Florida Statutes (1977).
Sentencing Hysmith for this misdemean-or, the trial court found that Hysmith, on another and prior occasion, was convicted of the same misdemeanor, resisting an officer without violence, committed within two years before the offense for which he was to be sentenced. Section ,775.084(1)(b)2. The court therefore found Hysmith eligible as a habitual misdemeanant to an extended term of imprisonment.
It is unnecessary to consider Hysmith’s argument that the prior conviction was inadequately proved. Because the statute requires a showing of convictions of the same crime “at least twice previously”, committed after the defendant’s 18th birthday, we necessarily conclude that Hysmith’s prior conviction of the same crime once previously did not qualify him for sentencing as a “habitual misdemeanant” as that term is defined by the statute. Shead v. State, 367 So. 2d 264 (Fla. 3d DCA 1979). Hysmith’s still earlier conviction of a felonious aggravated assault on a police officer was not a conviction of “the same crime” for which Hysmith was to be sentenced; nor was it the “same crime” as Hysmith’s first conviction for resisting arrest without violence. “The same crime” means the same crime, not a similar crime, and not similar circumstances.
The judgment is AFFIRMED but the extended sentence is VACATED and the case is remanded for resentencing.
BOOTH, J., and MELVIN, WOODROW M., Associate Judge (Ret.), concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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King v. State, 398 So. 2d 469 (Fla. 5th DCA 1981)…ppellant to be an “habitual misdemeanant” based upon prior convictions for robbery and manslaughter. Section 775.084(l)(b)1 permits an enhanced penalty only when the defendant has been convicted twice previously of the same crime. Hysmith v. State, 374 So. 2d 1103 (Fla. 1st DCA 1979). Neither of the previous convictions were for the same crime. Defendant’s sentence is vacated and this cause is remanded for resentencing. DAUKSCH, C. J., and ORFINGER, J., concur. . Section 775.084(l)(b) provides in part: ‘H…
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Worthy v. State, 412 So. 2d 412 (Fla. 3d DCA 1982)…, Florida Statutes (1979). The record does not show that he was convicted previously of carrying a concealed weapon and, therefore, there should not have been an enhanced sentence. King v. State, 398 So. 2d 469 (Fla. 5th DCA 1981); Hysmith v. State, 374 So. 2d 1103 (Fla. 1st DCA 1979). The sentences for attempted burglary and aggravated assault are affirmed. We strike one year from the two-year sentence for carrying a concealed weapon and leave the defendant to serve a one year sentence on this conviction.…
Authorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Shead v. State, 367 So. 2d 264 (Fla. 3d DCA 1979)