PETER CLARK WINTERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter Clark Winters appealed his conviction for attempted unarmed robbery. The appellate court affirmed the conviction but vacated the sentence because the trial judge failed to provide sufficient factual findings to support the habitual felony offender enhancement.
The appellate court held that the trial judge's sentencing order was wholly insufficient because it failed to articulate the underlying facts and circumstances supporting the finding that an extended sentence was necessary for public protection from the defendant's further criminal activity, as required by section 775.084(3).
[1] Attempted unarmed robbery is a crime in Florida, requiring specific intent to permanently deprive the owner of property.
[2] A trial court's finding that habitual offender sentencing is necessary for public protection must be supported by underlying facts and circumstances.
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Join FLexlaw to unlock all legal intelligence“one of the requisite elements of the offense of robbery is specific intent to deprive permanently the owner of his property”
Establishes that attempted robbery is a valid crime in Florida, supporting affirmance of conviction
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Join FLexlaw to unlock all legal intelligenceWinters was convicted of attempted unarmed robbery. At sentencing, the trial judge designated Winters as a habitual felony offender under Florida Stat…
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WIGGINTON, Judge.
This cause is brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Reed v. State, 378 So. 2d 899 (Fla. 1st DCA 1980). Appellant also filed a pro se brief.
We have thoroughly reviewed the record and find no reversible error in regard to appellant’s conviction for attempted unarmed robbery. Since one of the requisite elements of the offense of robbery is specific intent to deprive permanently the owner of his property, Graham v. State, 406 So. 2d 503 (Fla. 3d DCA 1981), attempted (unarmed) robbery is a crime in Florida. Thus, the single point raised by appellant is without merit.
Nevertheless, we do perceive a problem with appellant’s sentence. In sentencing appellant to nine years’ incarceration, the trial judge found appellant to be a habitual felony offender under section 775.-084, Florida Statutes (1983). However, in his order, apart from making the proper necessary threshold inquiry as to whether appellant qualified as a habitual felony offender, as set forth in section 775.084(l)(a), the judge merely stated: “The Court finds that the imposition of sentence under Florida Statute Section 775.084 is necessary for the protection of the public from further criminal activity by the defendant.” In doing so, the trial judge erred. This Court has held that '“we must be apprised of the underlying facts and circumstances which the trial judge relied on in making that finding.” Adams v. State, 376 So. 2d 47, 58 (Fla. 1st DCA 1979); see also Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985); and Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984). “That finding” referred to in Adams is the second-stage determination under section 775.084(3), that an extended sentence is necessary for the protection of the public from further criminal activity. Not even the judge’s remarks at the hearing were sufficient to apprise this Court of what material influenced him in reaching the ultimate finding.
Accordingly, we hold the finding by the trial judge in this instance to be wholly insufficient on its face to show that the public requires appellant’s extended imprisonment for its protection against his further criminal activity. The sentence is therefore VACATED and the cause REMANDED for resentencing, conventionally or in accordance with section 775.084.
SHIVERS and WENTWORTH, JJ„ concur.
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Citator
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Winters v. State, 500 So. 2d 303 (Fla. 1st DCA 1986)…appellant’s first appeal this court reversed his sentence which was based on the habitual offender statute and remanded for resentencing because the lower court failed to make specific findings of fact to support its sentence. See Winters v. State, 475 So. 2d 1025 (Fla. 1st DCA 1985). The trial court again sentenced appellant as an habitual offender. The maximum statutory penalty for attempted unarmed robbery is five years incarceration pursuant to sections 777.04, and 812.13(1) Florida Statutes (1985). The t…
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Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)…future criminal behavior. See Walker v. State, 462 So. 2d 452 (Fla.1985); Bogan v. State, 489 So. 2d 157 (Fla. 2d DCA 1986); Rosemond v. State, 489 So. 2d 1185 (Fla. 1st DCA 1986); Welsh v. State, 486 So. 2d 38 (Fla. 2d DCA 1986); Winters v. State, 475 So. 2d 1025 (Fla. 1st DCA 1985); Hopkins v. State, 463 So. 2d 521 (Fla. 3d DCA 1985); Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984); Little v. State, 440 So. 2d 603 (Fla. 3d DCA 1983). A general statement that due to his record it is necessary for the prote…
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Rosemond v. State, 489 So. 2d 1185 (Fla. 1st DCA 1986)…that a defendant is a habitual offender. Further, a conclusory statement, as was made in this case, that such a finding was necessary for the protection of the public from further criminal activity by the defendant is insufficient. Winters v. State, 475 So. 2d 1025 (Fla. 1st DCA 1985). Accordingly, we reverse Rosemond’s sentence and remand for reconsideration of the imposition of an extended term in compliance with the provisions of Section 775.084, Florida Statutes (1981). Rosemond’s final issue on appeal is…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Ulysses Adams, Jr. v. State, 376 So. 2d 47 (Fla. 1st DCA 1979)
- Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984)
- Graham v. State, 406 So. 2d 503 (Fla. 3d DCA 1981)
- Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)
- Reed v. State, 378 So. 2d 899 (Fla. 1st DCA 1980)