JOHN POPOLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
DAUKSCH, Judge.
This is an appeal from a sentence. Appellant was convicted of lewd and lascivious assault and was given an enhanced penalty as an habitual felony offender. § 775.084, Fla.Stat. (1983). Because the felony for which appellant was sentenced was committed before the conviction used for enhancement purposes we do not deem appellant qualified for enhancement. As was said in Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984), quashed on other grounds in State v. Snowden, 476 So. 2d 191 (Fla.1985) “for a felony conviction to serve as a qualifying offense for purposes of enhanced sentencing under section 775.-084, the prior felony conviction must have occurred before, (and within five years of) the commission of the crime for which defendant is being sentenced.”
The state took the Snowden case to the supreme court, it reviewed it and quashed the portion dealing with double jeopardy and said nothing regarding the enhanced penalty portion of our Snowden opinion. That is tacit approval.
The sentence is reversed and this cause remanded for resentencing.
REVERSED and REMANDED.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brooks v. State, 578 So. 2d 893 (Fla. 1st DCA 1991)…or to the simultaneous convictions used to support his sentences as a habitual felony offender, and, therefore, those convictions cannot be considered prior felony convictions as required by section 775.084, Florida Statutes (1989). Popolo v. State, 477 So. 2d 1081 (Fla. 5th DCA 1985). We, therefore, vacate the appellant’s sentence and remand for resentencing. JOANOS, WIGGINTON and WOLF, JJ., concur.…
Authorities Cited
- Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984)
- State v. Snowden, 476 So. 2d 191 (Fla. 1985)