JAMES RICHARD EICHHORN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Eichhorn was convicted of cannabis possession and sentenced as a habitual felony offender. The appellate court reversed the enhanced sentence because the trial judge failed to state on the record the specific reasons for invoking the enhanced penalty statute, violating statutory requirements and appellate review rights.
A trial court must state on the record the reasons why it is invoking the enhanced penalty statute. The record must reflect the basis for the enhanced penalty and show by a preponderance of evidence that the enhanced sentence is necessary to protect the public. Failure to provide these findings on the record requires reversal of the sentence.
[1] A trial court must state on the record the reasons for imposing an enhanced sentence under habitual felony offender statutes.
[2] The record must reflect, by a preponderance of the evidence, that an enhanced sentence is necessary for the protection of the public.
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Join FLexlaw to unlock all legal intelligence“The record must reflect the basis for the enhanced penalty, and it must appear by a preponderance of the evidence that the enhanced sentence is necessary to protect the public from the criminal activity of the defendant.”
Establishes the statutory and evidentiary requirements for imposing enhanced sentences under section 775.084.
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Join FLexlaw to unlock all legal intelligenceEichhorn was convicted of possession of more than 5 grams of cannabis. He had prior felony convictions within five years of his present adjudication, …
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SHARP, G. KENDALL, Associate Judge.
Appellant, James Eichhorn, was convicted of possession of more than 5 grams of cannabis, and the trial court sentenced him as an habitual felony offender. At the sentencing hearing the court determined that due to prior felony convictions within five years of his present adjudication, the defendant would be exposed to the enhanced punishment provision, section 775.084, Florida Statutes (1979). The defendant made a lengthy mitigating statement. Prior to the court imposing sentence, the prosecuting attorney correctly summarized cases in which courts considered imposing the enhanced penalty. The record must reflect the basis for the enhanced penalty, and it must appear by a preponderance of the evidence that the enhanced sentence is necessary to protect the public from the criminal activity of the defendant. Jones v. State, 384 So. 2d 956 (Fla.5th DCA June 18, 1980); Bell v. State, 382 So. 2d 107 (Fla.5th DCA 1980). However, the trial judge did not state in the record why he was sentencing the defendant to the greater term. Section 775.084, Florida Statutes (1979) subsection (3) provides: 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) .
He only stated that there were aggravating circumstances in the case at bar and that the defendant would be sentenced under the enhanced penalty statute to ten years with probation after serving four. In Chukes v. State, 334 So. 2d 289 (Fla.4th DCA 1976), the court stated:
It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 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 § 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.
Id. at 290. See McClain v. State, 356 So. 2d 1256 (Fla.2d DCA 1978); King v. State, 369 So. 2d 1031 (Fla.4th DCA 1979).
The trial judge can consider a defendant’s prior record alone so long as the conviction record is reflected in open court and is sufficient to satisfy the judge by a preponderance of evidence that the defendant should be sentenced under section 775.-084, Florida Statutes (1979), for the protection of the public.
Because the reasons were not given by the trial judge in this case why section 775.084, Florida Statutes (1979), was being invoked, we reverse the sentence and remand for resentencing.
Sentence REVERSED and REMANDED.
DAUKSCH, C. J., and SHARP, J., concur.
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Cleveland Wright v. State, 476 So. 2d 325 (Fla. 2d DCA 1985)…State, 383 So. 2d 219 (Fla.1980); McClain v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978). Therefore, we hold that the trial court did not err in considering the defendant’s prior record which was read in open court by the state. See Eichhorn v. State, 386 So. 2d 604 (Fla. 5th DCA 1980). We affirm defendant’s convictions; however, since the trial court did not make the necessary findings of fact to indicate that an enhanced sentence is necessary to protect the public, we vacate defendant’s sentence and remand f…
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Parker v. State, 421 So. 2d 712 (Fla. 3d DCA 1982)…have considered appellant’s contention in the light of 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…
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Ruiz v. State, 407 So. 2d 1042 (Fla. 3d DCA 1981)…ual felon, the court must find that the extended sentence is necessary to protect the public from further criminal activity, and the basis for this finding must appear in the record. See Eutsey v. State, 383 So. 2d 219 (Fla.1980); Eichhorn v. State, 386 So. 2d 604 (Fla.5th DCA 1980); Ruiz v. State, 384 So. 2d 723 (Fla.3d DCA 1980); Adams v. State, 376 So. 2d 47 (Fla.1st DCA 1979). Because the trial court did not specify the reasons why the habitual offender act, section 775.084, Florida Statutes (1979), was b…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980)
- Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976)
- McCLAIN v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978)
- Petty v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979)
- Losko Bell v. State, 382 So. 2d 107 (Fla. 5th DCA 1980)