CURTIS LOUIS JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Louis Jones was convicted of second-degree robbery and sentenced as a habitual offender under Florida's enhanced penalty statute. The Fifth District Court of Appeal affirmed the conviction and habitual offender designation but reversed an invalid search condition in the probationary sentence.
The court held that the state's evidence met the preponderance standard to establish habitual felon status without fingerprints or a certified judgment; the failure to raise the public safety requirement argument at trial waived appellate review; and the warrantless search provision violated Grubbs v. State and was therefore invalid.
[1] A prior conviction can be proven for habitual offender sentencing purposes by a preponderance of the evidence, without requiring a certified judgment or fingerprint evide…
[2] An objection to sentencing as an habitual offender, based on the lack of a specific finding of necessity for public protection, is waived if not raised before the trial c…
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Join FLexlaw to unlock all legal intelligence“The applicable provision of the statute provides for findings based on a preponderance of the evidence, and the state's proof clearly met that burden.”
Establishes that fingerprint evidence and certified judgments are not required to prove prior convictions for habitual offender enhancement; preponderance standard is satisfied by parole supervisor testimony and documents.
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Join FLexlaw to unlock all legal intelligenceJones was convicted by jury of second-degree robbery committed on August 4, 1978. At sentencing, the state sought enhanced penalties under Section 775…
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COBB, Judge.
The defendant, Curtis Louis Jones, was found guilty after jury trial of robbery in the second degree per Section 812.13(2)(e), Florida Statutes (1977), a crime designated as a second degree felony. The trial court adjudicated him guilty and deferred sentencing pending receipt of a pre-sentence investigative report. The robbery was committed on August 4, 1978.
The state then filed a notice of intention to seek an enhanced penalty under Section 775.084, Florida Statutes (1977).1 A sentencing hearing was held on November 7, 1978, and evidence was introduced showing that appellant had been supervised on parole from March, 1974, to September, 1975. The state produced copies of the certificates of discharge and parole relating to the prior offense, but no judgment or verdict was offered in evidence to prove the prior conviction, nor were the defendant’s fingerprints offered to show identity. However, the parole supervisor, one Randy Amos, testified at the hearing and identified Jones as the man he had supervised. A photograph of Jones from the files of the Department of Corrections also was introduced.
The appellant contends that the absence of fingerprint evidence and a certified copy of the judgment showing his 1971 conviction renders the evidence fatally deficient to support a determination by the trial court that he was an habitual felon. We cannot agree with this contention. The applicable provision of the statute provides for findings based on a preponderance of the evidence,2 and the state’s proof clearly met that burden.
The appellant also contends that the trial court erred in sentencing him as an habitual offender without a specific finding that such was necessary for the protection of the public. This objection was not raised before the trial court and, therefore, is not available to the defendant on this appeal. Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980). See also Clark v. State, 363 So. 2d 331 (Fla.1978) and Engel v. State, 353 So. 2d 593 (Fla. 3d DCA 1977).
The appellant also seeks correction of the judgment and sentence to reflect that he did not enter a plea of guilty but was tried by jury, and the state agrees to this.
Finally, the appellant contends that Special Condition 11 of a probationary provision of his sentence is invalid insofar as it authorizes any law enforcement officer at any time to search his person, vehicle or premises, which is contrary to Grubbs v. State, 373 So. 2d 905 (Fla.1979). We agree, and reverse this portion of the sentence.
Accordingly, we affirm the judgment and sentence entered by the trial court, with the exception of the incorrect reference to a plea therein and the aforesaid invalid probationary provision, and remand the cause to the trial court for correction of said judgment and sentence in accordance with this opinion. The defendant need not be present.
FRANK D. UPCHURCH, J., and SCHWARTZ, ALAN R., Associate Judge, concur. . See Eutsey v. State, 383 So. 2d 219 (Fla.1980).
. Section 775.084(3)(d), Florida Statutes (1977), reads: “Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…me in a proceeding instituted for that purpose in the trial court. See Barlow v. State, 390 So. 2d 165 (Fla. 5th DCA 1980); Barlow v. State, 388 So. 2d 349 (Fla. 5th DCA 1980); Singleton v. State, 386 So. 2d 1314 (Fla. 5th DCA 1980); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980). Any appeal attacking the validity of a specific condition of probation should be from an adverse ruling in the trial court. For the above reasons, we recede from Wilkinson. Ap…
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Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981)…e mandated by section 39.111(6), Florida Statutes (1979). These points were not raised before the trial court. They concern procedural errors which are not fundamental; therefore, they cannot be raised for the first time on appeal. Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980), cert. denied, 392 So. 2d 1375 (Fla.1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980), approved, 394 So. 2d 407 (Fla.1980); cf. Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981). Accordingly, the judgment and sentenc…
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Rubasky v. State, 401 So. 2d 894 (Fla. 5th DCA 1981)…eration of the criteria included in section 39.111(6)(c), Florida Statutes (1979). However, appellant did not raise this objection before the trial court and therefore we will not consider the merits of this procedural question.1 See Jones v. State, 384 So. 2d 956 (Fla. 5th DCA), cert. denied, 392 So. 2d 1375 (Fla.1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA), approved, 394 So. 2d 407 (Fla.1980). Accordingly the judgment and sentence are affirmed without prejudice to appellant’s right to seek appropria…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Grubbs v. State, 373 So. 2d 905 (Fla. 1979)
- Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980)
- Brinkley v. S. Bell Tel. & Tel. Co., 353 So. 2d 593 (Fla. 3d DCA 1977)