ROBERT BEELER POWER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Power appealed his conviction and sentence for multiple felonies. While the appellate court affirmed his convictions, it reversed the 30-year habitual offender enhancement sentence for the second-degree felony because the trial court failed to make the required factual findings under Florida's habitual offender statute.
The court held that the 30-year habitual offender sentence must be vacated because the trial court failed to make the required factual findings, though such findings need not be reduced to writing if made in a reported judicial proceeding. The court assumed the habitual offender designations on the life sentences were scrivener's errors requiring correction on remand, as life sentences are not subject to habitual offender enhancement.
[1] A trial court must make specific factual findings required by statute before imposing an habitual offender sentence.
[2] Habitual offender findings need not be reduced to writing if made in a reported judicial proceeding.
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Join FLexlaw to unlock all legal intelligence“Because the trial court failed to make the factual findings required by section 775.-084, Florida Statutes, we must vacate the habitual offender sentence.”
Establishes the core holding that the habitual offender enhancement must be vacated due to lack of required factual findings.
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Join FLexlaw to unlock all legal intelligencePower was convicted by jury of six life felonies, two first-degree felonies punishable by life, and one second-degree felony. The trial court sentence…
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GOSHORN, Judge.
Appellee’s Motion for Clarification is granted. The opinion issued July 19, 1990 is withdrawn and the following opinion is substituted in lieu thereof.
Robert Power, Jr. appeals the judgment and sentence imposed after a jury returned a verdict finding him guilty of six life felonies, two first degree felonies punishable by life and one second degree felony.1 The scoresheet total was almost twice that needed to place the recommended sentence at life imprisonment. The trial court departed2 and sentenced Power to eight consecutive life sentences for all but the second degree felony count, for which Power was given a 30 year sentence consecutive to the life sentences. The trial court provided clear and convincing reasons for the departure sentences. These are not challenged. Power does, however, take issue with the 30 year sentence for the second degree felony, imposed by the trial court after its determination that Power is an habitual offender. Because the trial court failed to make the factual findings required by section 775.-084, Florida Statutes, we must vacate the habitual offender sentence. Moreno v. State, 550 So. 2d 1172 (Fla. 3d DCA 1989). Although the 1989 version of the habitual offender statute no longer requires that the trial court find that a defendant poses a threat to public safety, the other findings necessary to an habitual offender determination survived the 1988 amendment.3 Johnson v. State, 564 So. 2d 1174 (Fla. 4th DCA 1990); Taylor v. State, 559 So. 2d 385 (Fla. 3d DCA 1990). These findings need not be reduced to writing as long as they are made in a reported judicial proceeding. Parker v. State, 546 So. 2d 727 (Fla.1989). Upon remand, the trial court may reconsider application of the habitual offender statute when resentencing Power. Moreno; Pugh v. State, 547 So. 2d 289 (Fla. 1st DCA 1989).
Additionally, when imposing sentences for each of the felonies punishable by life, the “habitual offender” boxes were checked on the judgment and sentence form. Because life sentences are not subject to habitual offender enhancement,4 we assume these are scrivener’s errors which the trial court is directed to correct on remand.
Convictions AFFIRMED; Sentence REVERSED in part; REMANDED.
COBB and PETERSON, JJ., concur. . A thorough review of the record reveals that of the numerous issues raised by Power, only that discussed above has any merit.
. See Rease v. State, 493 So. 2d 454 (Fla.1986).
. Ch. 88-131, § 6, Laws of Florida. See § 775.084(3), Fla.Stat. (Supp.1988).
. § 775.084(4)(a) Fla.Stat. (1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Burdick v. State, 594 So. 2d 267 (Fla. 1992)…ment and a life felony. Burdick concludes that because the district courts of appeal have held that life felonies are not subject to habitual offender enhancement, see, e.g., Johnson v. State, 568 So. 2d 519, 520 (Fla. 1st DCA 1990); Power v. State, 568 So. 2d 511, 512 (Fla. 5th DCA 1990), neither are first-degree felonies punishable by life imprisonment. We disagree. The legislature has created five categories of felonies: capital felony; life felony; felony of the first degree; felony of the second degree;…
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Lamont v. State, 610 So. 2d 435 (Fla. 1992)…ubject to enhanced sentencing under the habitual offender statute); McKinney v. State, 585 So. 2d 318 (Fla. 2d DCA 1991) (same); Walker v. State, 580 So. 2d 281 (Fla. 4th DCA 1991) (same) review dismissed, 593 So. 2d 1049 (Fla.1992); Power v. State, 568 So. 2d 511 (Fla. 5th DCA 1990) (same). The district court rejected the petitioners’ construction of the Act. The court reasoned that such a construction would defeat the legislative intent, as expressed in sections 775.0841 and 775.0842, Florida Statutes (198…
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Lamont v. State, 597 So. 2d 823 (Fla. 3d DCA 1992)…; Barber v. State, 564 So. 2d at 1173 (in rejecting argument that habitual offender statute is unconstitutional, court noted in dictum that statute was not expressly applicable to life felonies). The Fifth District Court of Appeal in Power v. State, 568 So. 2d 511 (Fla.App. 5th DCA 1990), and the Second District Court of Appeal in McKinney v. State, 585 So. 2d 318 (Fla. 2d DCA 1991) have similarly stated that life felony sentences are not subject to habitual offender enhancement. See also White v. State, 589…1 / 2
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Timmie Lewis Parker v. State, 546 So. 2d 727 (Fla. 1989)
- Rease v. State, 493 So. 2d 454 (Fla. 1986)
- Delrick Johnson v. State, 564 So. 2d 1174 (Fla. 4th DCA 1990)
- Taylor v. State, 559 So. 2d 385 (Fla. 3d DCA 1990)
- Robby Douglas Pugh v. State, 547 So. 2d 289 (Fla. 1st DCA 1989)
- Moreno v. State, 550 So. 2d 1172 (Fla. 3d DCA 1989)