JOHN E. GRUBBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence as a habitual offender is illegal if the defendant did not receive the required written notice.
The appellant was convicted of aggravated battery and assault and sentenced. The trial court also declared him a habitual offender but did not enhance…
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SCHEB, Chief Judge.
Appellant, John Grubbs, seeks review of an order which summarily denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(g).
Grubbs was found guilty of one count of aggravated battery and two counts of aggravated assault. The three-year mandatory minimum sentence applied in this case pursuant to section 775.087, Florida Statutes (1979), as appellant possessed a firearm. Grubbs was sentenced to three years on each charge, the sentences to run concurrently. The court also declared Grubbs a habitual offender under section 775.084; however, his sentence was not enhanced as a result of that declaration.
Appellant attacks his conviction on several grounds, but the only point which has merit is his challenge to the legality of his being sentenced as a habitual offender. Section 775.084(3)(b) requires written notice to be served on a defendant and his attorney when the court intends to sentence the defendant under this section. The record reveals that no advance written notice that he might be sentenced as a habitual offender was given to appellant as required by the statute. Thus, his sentence as a habitual offender is illegal and subject to correction by his motion for postconviction relief under Rule 3.850. Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980).
Accordingly, we strike the reference to Grubbs’ being a habitual offender from his sentence; otherwise, we affirm the trial court’s denial of his petition.
OTT and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…at the issue of lack of notice of enhancement could not be raised in a motion to correct an illegal sentence. The trial court did not attach the plea agreement or the transcripts of the plea and sentencing hearings to its order. In Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982), and in Ivey v. State, 500 So. 2d 730 (Fla. 2d DCA 1987), this court ruled that similar allegations could be raised by a motion for postconviction relief. Because the allegations, if true, would entitle appellant to relief from an…1 / 3
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Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991)…g to seek habitual offender status.” Defense counsel did not dispute the court’s statement, merely responding: "I just wish to register my objection for the record, your Honor.” . The dissent insists that Nunziata, cited above, and Grubbs v. State, 412 So. 2d 27 (Fla.2d DCA 1982) require a finding that a habitual offender sentence without written notice is illegal. But these cases must be interpreted in light of their facts. In both Nunziata and Grubbs there is no indication that any notice was given. These…1 / 3
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Torance A. Edwards v. State, 576 So. 2d 441 (Fla. 4th DCA 1991)…ndant and his counsel a sufficient time prior to imposition of a sentence so as to allow preparation of a submission on the defendant’s behalf. If no advance written notice is provided, a sentence as an habitual offender is illegal. Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982). See also Nunziata v. State, 561 So. 2d 1330 (Fla. 5th DCA 1990) (no advance written notice of state’s intent to seek enhancement of sentence in accordance with statute, any subsequent habitual offender enhancement is illegal; lac…
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- Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980)