DEAN DELGUIDICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions but reversed sentence because the prior conviction supporting habitual offender status was not final at sentencing, and struck the probationary period and costs as exceeding statutory authority.
A prior conviction used to support habitual offender status must be final at the time of sentencing, and the statutory maximum sentence cannot be exceeded by adding probation or costs.
[1] A prior conviction used to enhance a sentence as a habitual offender must be final at the time of sentencing; reliance on a conviction still on appeal constitutes reversi…
[2] The statutory maximum sentence for a crime cannot be exceeded by imposing probation or costs beyond that maximum.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced as a habitual offender to ten years imprisonment followed by two years probation, with the prior conviction supporting habitua…
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HERSEY, Chief Judge.
We affirm appellant’s convictions but reverse the sentence and imposition of costs.
Appellant was sentenced as an habitual offender to ten years imprisonment to be followed by two years probation. The statutory maximum, as conceded by the state, was ten years and we therefore strike the added probationary period. McCray v. State, 517 So. 2d 770 (Fla. 2d DCA 1988). The prior conviction relied upon to support the finding of habitual offender status was on appeal to this court, thus not final, at the time of sentencing. Reliance on it therefore constitutes reversible error. See State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984). We reject appellant’s contention that the trial court must reduce his findings in support of habitual offender status to writing. Parker v. State, 546 So. 2d 727 (Fla.1989). However, for the reasons indicated, we reverse and remand for resentencing, at which time as part of the sentencing process the trial court may either enter an order striking costs or conduct a hearing and impose costs, which we strike in the present appeal on the authority of Mays v. State, 519 So. 2d 618 (Fla.1988) and a multitude of similar precedents.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
LETTS and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Anderson v. State, 632 So. 2d 132 (Fla. 4th DCA 1994)…onviction relied upon by the court as a basis for enhancing appellant’s sentence was on appeal at the time of sentencing. A conviction under appeal is non-final and cannot be a predicate to a finding of habitual offender status. Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990); State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984). Accordingly, we reverse appellant’s sentence and remand for resen-tencing. Before appellant’s sentencing hearing, the trial court entered a judgment for costs which include…
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Rubin Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993)…and did not appeal. He filed the instant motion in August 1992, alleging that his habitual offender sentence was illegal, in that one of the necessary predicate felony convictions was on appeal at the time of sentencing, citing Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990) (a prior conviction cannot support an habitual offender finding when the prior conviction is on appeal at the time of sentencing, and thus not final). Baxter also alleged ineffective assistance of counsel in advising him to agree…
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Ezekiel Peterson v. State, 651 So. 2d 781 (Fla. 4th DCA 1995)…0 So. 2d 304, 305 (1947), superseded on other grounds as recognized in State v. Barnes, 595 So. 2d 22 (Fla.1992); see also Breeze v. State, 641 So. 2d 450 (Fla. 1st DCA 1994); Baxter v. State, 617 So. 2d 338 (Fla. 1st DCA 1993); Delguidice v. State, 554 So. 2d 35 (Fla. 4th DCA 1990); Garrett v. State, 335 So. 2d 876 (Fla. 4th DCA 1976); see also State v. Villa- [*783] fane, 444 So. 2d 71 (Fla. 4th DCA 1984) (applying enhancement of punishment rule to enhancement of crime charged). Under these habitualized o…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)
- State v. Villafane, 444 So. 2d 71 (Fla. 4th DCA 1984)
- McCRAY v. State, 517 So. 2d 770 (Fla. 2d DCA 1988)