GERARD MICHAEL NUNZIATA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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GOSHORN, Judge.
Nunziata appeals his sentence as an habitual offender pursuant to section 775.084, Florida Statutes (1984). He alleges that no written notice of the State’s intention to seek enhancement of sentence as required by section 775.084(3)(b), Florida Statutes (1988)1 appears of record. This court has recently held that the statute does not require the notice to be filed with the court, but only that the notice be served on the defendant and his attorney. Long v. State, 558 So. 2d 1091 (Fla. 5th DCA 1990). In the case at bar, however, the State does not contend that notice was served, but rather urges that “it does not appear that the defendant was harmed by the lack of written notice.” “Harm” is not the test. Where no advance written notice is served in accordance with the statute, any subsequent habitual offender enhancement is illegal. Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982).
Sentence VACATED, REMANDED.
COWART and PETERSON, JJ., concur. . Section 775.084(3)(b) states:
Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of a sentence so as to allow the preparation of a submission on behalf of the defendant.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991)…all be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant, (emphasis added). In Nunziata v. State, 561 So. 2d 1330 (Fla. 5th DCA 1990) and Sweat v. State, 570 So. 2d 1111 (Fla. 5th DCA 1990), we held that a defendant need not show harm in order to assert a lack of written notice as reversible error. However, the issue in this case is not whether Massey must show…1 / 3
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Torance A. Edwards v. State, 576 So. 2d 441 (Fla. 4th DCA 1991)…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; lack of harm to defendant not the test). The state’s contention th…
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Sweat v. State, 570 So. 2d 1111 (Fla. 5th DCA 1990)…tent to seek enhanced sentencing was served on appellant as required by law. See § 775.084(3)(b), Fla.Stat. (1989). This is reversible error, and appellant need not demonstrate that he was harmed by the lack of written notice. See Nunziata v. State, 561 So. 2d 1330 (Fla. 5th DCA 1990). Appellant’s sentences are reversed, and the case remanded for resentencing. JUDGMENTS AFFIRMED; SENTENCES VACATED. COWART and HARRIS, JJ., concur.…
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- Long v. State, 558 So. 2d 1091 (Fla. 5th DCA 1990)
- Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982)