CLEVELAND WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court must make specific findings that an extended sentence is necessary to protect the public when sentencing a defendant as a habitual offender, and that a defendant's prior record can be considered without corroboration if the defendant does not dispute its truth.
[1] A trial court must make specific findings of fact when sentencing a defendant as a habitual offender under section 775.084, Florida Statutes.
[2] A trial court's general statement that a case fits the subsequent felony offender statute does not satisfy the requirement for specific findings necessary to protect the…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of grand theft and sentenced as a habitual offender. He appealed, arguing the trial court failed to make the necessary fin…
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SCHEB, Judge.
Defendant Cleveland Wright was convicted of grand theft in the second degree. The trial court sentenced him to nine years imprisonment as a habitual offender under section 775.084, Florida Statutes (1983). Wright contends that: (1) the trial court did not make the necessary findings that an enhanced sentence was necessary to protect the public from further criminal activity and; (2) it was improper for the court to base its decision on uncorroborated hearsay as to defendant’s prior criminal record. We agree with defendant’s first contention; we reject the second.
At the outset we reject the state’s contention that because the defendant did not object to the trial judge’s failure to make specific findings the point has not been preserved for review on appeal. Walker v. State, 462 So. 2d 452 (Fla.1985).
In order for the court to enhance a defendant’s sentence under section 775.084, it must meet two requirements. First, it must find that the present felony was committed within five years of the last prior felony or two first degree misdemeanors. Second, the court must determine that it is necessary for the protection of the public to sentence the defendant to an extended term. Here, the defendant stipulated that he had a prior felony conviction within the last five years. Nevertheless, he contends that he was improperly sentenced as a habitual offender because the trial court did not make the requisite statutory findings that demonstrate on their face that an extended prison term was necessary to protect the public. The trial judge merely stated that:
I am taking into consideration the fact that many of the offenses for which the assistant prosecutor has read off Mr. Wright’s record, are offenses for petit larceny. However, I do believe this is a type of case that the subsequent felony offender statute was created.
This general statement by the trial judge does not satisfy the requirements of section 775.084. As the supreme court stated in Walker, “the legislature intended the trial court to make specific findings of fact when sentencing a defendant as a habitual offender.” See also, Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984), where we held that section 775.084 is not satisfied where the trial court merely ruled that based on the defendant’s record and the particular facts of the case it was necessary to sentence the defendant as a habitual offender to protect the public.
Because it is necessary to remand to the trial court for resentencing, we will address defendant’s second point on appeal in which he challenges the trial court’s consideration of his prior record through uncorroborated testimony. At the sentencing hearing, the state, over defendant's objection, listed the defendant’s sixteen prior convictions. Defense counsel objected on the ground that the record of these prior convictions was not included in the presen-tence investigation, and further, that the state did not have adequate proof of the prior convictions. The trial court overruled the objection and proceeded to receive an account of the defendant’s prior convictions.
Defendant now argues, on the basis of McElveen v. State, 440 So. 2d 636 (Fla. 1st DCA 1983), that it was improper for the trial court to base its findings on the uncorroborated statements by the state. We disagree. As this court has previously held, there are at least some cases where a defendant’s prior record alone may justify a finding that an enhanced sentence is necessary to protect the public. Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978). If the defendant disputes the truth of the hearsay statement, the state must produce corroborating evidence in order for the statement to be relied upon in making the required statutory findings. Smith v. State, 461 So. 2d 995, 997 (Fla. 5th DCA 1984). Where, as here, the defendant does not dispute the truth of the listed convictions, the state is not required to come forward with corroborating evidence. Eutsey v. 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 for resentencing. If the trial court finds an enhanced sentence is necessary for the protection of the public, it must state the basis for its finding.
GRIMES, A.C.J., and LEHAN, J., concur.
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Citator
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McKAY v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986)…to its use as hearsay. We find that the trial court was correct in its conclusion that, where the defendant does not dispute the truth of the listed convictions, the state is not required to come forward with corroboration thereof. Wright v. State, 476 So. 2d 325, 327 (Fla. 2d DCA 1985). See also Stacey v. State, 483 So. 2d 542 (Fla. 1st DCA 1986); Baker v. State, 493 So. 2d 515 (Fla. 1st DCA 1986); Olivera v. State, 494 So. 2d 298 (Fla. 1st DCA 1986). Affirmed. SHIVERS and JOANOS, JJ„ concur.…
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Myers v. State, 499 So. 2d 895 (Fla. 1st DCA 1986)…port, counsel for Myers replied that he disagreed with the prosecution’s statement of the law. Hence, the trial court was not required to order the State to produce corroborating evidence. Eutsey v. State, 383 So. 2d 219 (Fla.1980); Wright v. State, 476 So. 2d 325 (Fla. 2d DCA 1985) (where, as here, the defendant does not dispute the truth of the listed convictions, the State is not required to come forward with corroborating evidence). Myers’ final contention is that the trial court’s order finding him to b…
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Fleming v. State, 480 So. 2d 715 (Fla. 2d DCA 1986)…tencing court, in order to implement the habitual offender statute, was required to find that the present felony was committed within five years of either the last prior felony conviction or two first degree misdemeanor convictions. Wright v. State, 476 So. 2d 325 (Fla. 2d DCA 1985). The data contained in Fleming’s presentence investigation report satisfied the first requirement. The court was then required pursuant to section 775.084(3)(d) to document specific findings facially demonstrating the necessity fo…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Bennie Lee Walker v. State, 462 So. 2d 452 (Fla. 1985)
- McCLAIN v. State, 356 So. 2d 1256 (Fla. 2d DCA 1978)
- Scott v. State, 446 So. 2d 261 (Fla. 2d DCA 1984)
- Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978)
- Brooks v. State, 461 So. 2d 995 (Fla. 1st DCA 1984)
- Kurtis Smith v. State, 461 So. 2d 995 (Fla. 5th DCA 1984)
- Eichhorn v. State, 386 So. 2d 604 (Fla. 5th DCA 1980)
- McELVEEN v. State, 440 So. 2d 636 (Fla. 1st DCA 1983)