GREGORY LEON SWEAT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the lack of written notice for habitual offender sentencing is reversible error, even without a showing of harm.
Appellant was convicted of forgery-related felonies and sentenced as an habitual offender. He argued his sentences were cruel and unusual due to drug …
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DAUKSCH, Judge.
This is an appeal from judgments and sentences entered in three circuit court cases. Appellant was convicted of six forgery-related felonies and sentenced as an habitual offender to a total of twenty years incarceration. .Appellant first claims that his sentences were enhanced due to his cocaine addiction and therefore constitute cruel and unusual punishment. Appellant also argues that he did not receive written notice of the state’s intention to seek sentencing under the habitual offender statute.. Because we find merit in the latter argument, we reverse.
Appellant was classified as an habitual offender because of his criminal record, not because of his drug addiction. Appellant’s total incarceration of twenty years for six felonies is not particularly harsh and does not constitute cruel and unusual punishment.
The record on appeal does not show that advance written notice of the state’s intent 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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Toliver v. State, 605 So. 2d 477 (Fla. 5th DCA 1992)…ok no action. AFFIRMED. GOSHORN, C.J., and MUSLEH, V.J., Associate Judge, concur. . § 812.13, Fla.Stat. (1991). . § 893.13(l)(f), Fla.Stat. (1991). . § 775.084, Fla.Stat. (1991). . §§ 775.082(3)(c) and (d), Fla.Stat. (1991). . Sweat v. State, 570 So. 2d 1111 (Fla. 5th DCA 1990). . Art. II, § 3, Fla. Const. SECTION 3. Branches of Government.— The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers…
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Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991)…ient 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 harm in order to assert the lack of notice as error, bu…1 / 3
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Torance A. Edwards v. State, 576 So. 2d 441 (Fla. 4th DCA 1991)…lack of harm to defendant not the test). The state’s contention that appellant was not surprised by the classification is irrelevant because lack of harm to the defendant is not the test used. Nunziata, 561 So. 2d at 1331; see also Sweat v. State, 570 So. 2d 1111 (Fla. 5th DCA 1990) (failure to serve advance written notice of state’s intent to seek enhanced sentencing constitutes reversible error; defendant need NOT demonstrate harm). Accordingly, we agree with appellant that the written notice provided him…
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- Nunziata v. State, 561 So. 2d 1330 (Fla. 5th DCA 1990)