FELIX RUIZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Felix Ruiz appealed his probation revocation and enhanced habitual offender sentence. The court affirmed the probation revocation based on sufficient evidence but reversed the enhanced sentence because the trial court failed to make the required written or oral findings of fact necessary to impose the enhanced penalty.
The court held that the probation revocation was supported by sufficient evidence and was properly affirmed. However, the enhanced habitual offender sentence was reversed and vacated because the trial court failed to make either written or oral findings of fact on the record sufficient to support the enhanced sentence, as required by Section 775.084.
[1] Evidence sufficient to support revocation of probation may be established by the greater weight of the evidence.
[2] A trial court must make requisite findings of fact to support the imposition of an enhanced sentence under the habitual offender statute.
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Join FLexlaw to unlock all legal intelligence“The record in this case discloses neither written findings nor oral findings sufficient to support the imposition of an enhanced sentence upon the defendant for the protection of the public against further criminal activity.”
Establishes the core deficiency that required reversal of the enhanced sentence
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Join FLexlaw to unlock all legal intelligenceOn June 9, 1976, Ruiz pleaded guilty to attempted breaking and entering and assault and battery, receiving six months in jail followed by three years …
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NESBITT, Judge.
By this appeal, the defendant challenges: (1) the sufficiency of the evidence to support revocation of his probation; and (2) the failure of the trial court to make the required findings of fact that he was an habitual offender so as to subject him to an enhanced penalty pursuant to Section 775.-084, Florida Statutes (1977).
On June 9, 1976, the defendant entered a negotiated plea to an information charging him with: (a) attempted breaking and entering and (b) assault and battery, for which he received a split sentence of six months in the Dade County Stockade followed by a three-year period of probation.
On April 18, 1978, an amended affidavit of violation of probation was filed against the defendant charging him with: (1) being an accessory after the fact to the offense of murder; and (2) burglary of a home. Following an evidentiary hearing on the probation violations, the trial court found him guilty on both grounds of probation violations, as alleged. A review of the record satisfies us that the state sustained its burden in establishing evidence as to both grounds by the greater weight of the evidence. Wheeler v. State, 344 So. 2d 630 (Fla.2d DCA 1977).
Following revocation of probation, the state, in a separate proceeding, and by written notice, charged the defendant with being an habitual offender and alleged that an extended prison term was necessary for the protection of the public as required by Section 775.084(3), Florida Statutes (1977); see Grey v. State, 362 So. 2d 425 (Fla.4th DCA 1978). In that proceeding, the state adduced proof demonstrating a sufficient basis so as to permit the trial court to sentence the defendant to an enhanced sentence as an habitual offender. Grimmett v. State, 357 So. 2d 461 (Fla.2d DCA 1978); Chukes v. State, 334 So. 2d 289 (Fla.4th DCA 1976).
In Eutsey v. State, 383 So. 2d 219 (Fla.1980), our Supreme Court upheld the constitutionality of the enhanced sentence prescribed by Section 775.084, supra. In Eutsey, the Court held that the requisite findings as a basis for the enhanced sentence need not be made in writing but may orally be dictated in the record. The record in this case discloses neither written findings nor oral findings sufficient to support the imposition of an enhanced sentence upon the defendant for the protection of the public against further criminal activity. For this deficiency, we must reverse and vacate the ten-year sentence imposed upon the defendant with the direction that the trial court make the requisite findings of fact and appropriately resentence the defendant.
Relying upon Jenrette v. State, 373 So. 2d 718 (Fla.3d DCA 1979) and Engel v. State, 353 So. 2d 593 (Fla.3d DCA 1977), the state contends that the defendant’s failure to expressly preserve this point in the trial court requires our affirmance of the sentence and relegates the defendant to apply to the trial court for appropriate relief pursuant to Florida Rule of Criminal Procedure 3.850. Defendant, however, relies upon Noble v. State, 353 So. 2d 819 (Fla.1977), where our Supreme Court held that once the jurisdiction of a district court attaches and an error in sentencing in the trial court is raised, it should be considered and determined. The defendant did preserve the point in the trial court. Application of Noble is significant in this case because of the defendant’s challenge to the sufficiency of the evidence to support the revocation of his probation.
As we did in Abraham v. State, 382 So. 2d 382 (Fla.3d DCA 1980), we recognize that despite the holding in Noble v. State, supra, it will be more expeditious and represent a considerable saving in time, effort, and expense for questions relating only to sentences to be presented to the trial court for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850.
Accordingly, the revocation of the defendant’s probation is affirmed. However, the judgment prescribing an enhanced sentence is reversed and vacated and the cause remanded to the trial court to make the requisite findings in order to support an enhanced sentence to be imposed upon the defendant in accordance with the habitual felony statute, Section 775.084, supra; Eutsey v. State, supra; Whaley v. State, 382 So. 2d 802 (Fla.1st DCA 1980); King v. State, 369 So. 2d 1031 (Fla.4th DCA 1979).
Affirmed in part; reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)…nces, particularly those where only a sentencing error is raised, it may be more expeditious and less expensive to present sentencing questions to the trial court under Rule 3.850. We have encouraged defendants to adopt such a course. Ruiz v. State, 384 So. 2d 723 (Fla. 3d DCA 1980); Abraham v. State, 382 So. 2d 382 (Fla. 3d DCA 1980). In other instances, as where the defendant raises several points on appeal, among them a sentencing error (as in the present case), it may be more expeditious to present the se…
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Clark v. State, 553 So. 2d 240 (Fla. 3d DCA 1989)…utside the confines of the sentencing guidelines. We find it unnecessary to discuss this issue since the transcript of Smith’s sentencing hearing shows that the trial judge correctly found the defendant to be an habitual offender. See Ruiz v. State, 384 So. 2d 723, 724 (Fla. 3d DCA 1980). Consequently, Smith’s enhanced sentence was proper under section 775.084(4)(a), Florida Statutes (1987). Having affirmed both defendants' convictions, it is unnecessary to address the state’s cross-appeal claim that the tri…
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Clinton v. State, 389 So. 2d 1082 (Fla. 3d DCA 1980)…ffirmed. . We take this course because the record now before us is unclear as to whether the appropriate credit was in fact given in the sentences already imposed. See, Jenrette v. State, 373 So. 2d 718 (Fla. 3d DCA 1979); compare, Ruiz v. State, 384 So. 2d 723 (Fla. 3d DCA 1980).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Wheeler v. State, 344 So. 2d 630 (Fla. 2d DCA 1977)
- Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976)
- Dewayne F. Noble, III v. State, 353 So. 2d 819 (Fla. 1977)
- Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978)
- Petty v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979)
- Brinkley v. S. Bell Tel. & Tel. Co., 353 So. 2d 593 (Fla. 3d DCA 1977)
- Whaley v. State, 382 So. 2d 802 (Fla. 1st DCA 1980)
- Handy George, Jr. v. Woodville Lumber Co. & Travelers Ins. Co., 382 So. 2d 802 (Fla. 1st DCA 1980)
- Grey v. State, 362 So. 2d 425 (Fla. 4th DCA 1978)