ALBERT W. STEWART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stewart was convicted of grand theft of a motor vehicle and sentenced as a habitual offender under Florida's enhanced sentencing statute. The appellate court affirmed, holding that the trial court was not required to make explicit findings regarding pardon or conviction set-aside, as these are affirmative defenses for the defendant to raise.
The trial court was not required to make explicit findings regarding pardon or conviction set-aside. These are affirmative defenses that the defendant must raise, not matters the state must prove. The absence of such explicit findings is harmless error when the record amply supports such findings.
[1] A defendant seeking to avoid habitual offender sentencing based on a pardon or a set-aside conviction bears the burden of proving these affirmative defenses.
[2] The failure to explicitly recite findings that a defendant has not been pardoned and that their conviction has not been set aside is harmless error when the record otherw…
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Join FLexlaw to unlock all legal intelligence“these are affirmative defenses to be raised by appellant rather than matters that must be proved by the state”
Establishes that pardon and conviction set-aside are affirmative defenses, not required to be proven by prosecution
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Join FLexlaw to unlock all legal intelligenceStewart was convicted of grand theft of a motor vehicle. At the sentencing hearing, a prison investigator testified that Stewart had been released fro…
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PER CURIAM.
Appellant was adjudicated guilty of grand theft of a motor vehicle, and the state sought imposition of an enhanced sentence pursuant to Section 775.084(l)(a)2, Florida Statutes (1977). The court conducted a hearing to determine whether appellant should be sentenced as a habitual offender. Lieutenant Edward Williams, the prison investigator at the DeSoto Correctional Institution, testified that appellant was released from that institution on September 1, 1978. Lieutenant Williams was qualified as a fingerprint expert and testified that appellant’s fingerprints matched those on the certified copy of judgment and guilt which led to his commitment at DeSo-to Correctional Institution. This was the only evidence introduced at the hearing.
In its order sentencing appellant as a habitual offender, the court made findings that appellant had previously been convicted of a felony in this state, that the felony conviction upon which the court was sentencing appellant was committed within five years of his release from prison as a result of a prior conviction within Florida, and that the enhanced penalty was necessary for the protection of the public. Appellant contends that the trial court erred in not making findings that he had not been pardoned, and that his sentence had not been set aside as is required by Section 775.084(3)(d), Florida Statutes (1977). We disagree.
In Eutsey v. State, 383 So. 2d 219 (Fla.1980), the Florida Supreme Court upheld the constitutionality of Section 775.084, Florida Statutes (1977). As an alternative argument the appellant in that case contended that during the hearing on whether an enhanced sentence should be imposed, the state failed to prove that he had not been pardoned or the conviction set aside. The supreme court rejected this argument stating that these are affirmative defenses to be raised by appellant rather than matters that must be proved by the state. In Eutsey the trial court had made a finding that there was no pardon nor had the conviction been set aside.
The evidence that Stewart had been released from prison less than five years prior to the instant conviction was unrebutted. The record would amply support findings that Stewart had not been pardoned and that his conviction had not been set aside. Since the findings required by the statute are fully supported on the face of the record, the mere failure to recite a specific finding in the sentencing order to that effect is harmless error, if error at all, and, therefore, the judge properly imposed the extended sentence. Cf., McClain v. State, 356 So. 2d 1256 (Fla.2d DCA 1978).
As appellant’s other point is without merit, we AFFIRM.
HOBSON, Acting C. J., and OTT and CAMPBELL, JJ., concur.
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Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)…orida Statutes. Additionally, Myers asserts that the trial court failed to [*898] make specific findings of fact as to why it was necessary for the protection of the public to sentence him to an extended term. First, as settled by Stewart v. State, 385 So. 2d 1159 (Fla. 2d DCA 1980), the trial court committed harmless error, if any error at all, in failing to recite the specific finding that Myers had not been pardoned or received post-conviction relief from his last felony conviction since this finding was f…
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van Bryant v. State, 602 So. 2d 582 (Fla. 4th DCA 1992)…in Anderson as one of great public importance. AFFIRMED IN PART; REVERSED IN PART and REMANDED. GLICKSTEIN, C.J., and DELL and WARNER, JJ., concur. . We recognize that our holding conflicts with the Second District’s holding in Stewart v. State, 385 So. 2d 1159 (Fla. 2d DCA 1980).…
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Parker v. State, 421 So. 2d 712 (Fla. 3d DCA 1982)…the record and the controlling decisions and have concluded that the record is sufficient to support the enhanced sentence. Jones v. State, 387 So. 2d 401 (Fla. 5th DCA 1980); Eichhorn v. State, 386 So. 2d 604 (Fla. 5th DCA 1980); Stewart v. State, 385 So. 2d 1159 (Fla. 2d DCA 1980); McClain v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978). Affirmed. . The rule provides: (a) Joinder of Offenses. Two or more offenses which are triable in the same court may be charged in the same indictment or information in a s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- McCLAIN v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978)