KIM L. THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that it was error to sentence a defendant as a subsequent felony offender without the state producing evidence of prior convictions in open court, even if the defendant waived a presentence investigation report.
Appellant pled guilty to felony petit theft and was sentenced as a subsequent felony offender. He objected to the prior convictions used for enhanceme…
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PER CURIAM.
The appellant, Kim L. Thomas, challenges the sentences he received after he pled guilty to two counts of felony petit theft. We affirm appellant’s convictions, but set aside his sentences and remand for a new sentencing hearing.
Appellant was charged with two counts of felony petit theft and pled guilty. Appellant had been provided with notice that he would be treated as a subsequent felony offender. He was sentenced to two concurrent terms of three years probation as a “subsequent felony offender.” The recommended guidelines sentence was any non-state prison sanction. The appellant timely appealed.
Although he waived the presentence investigation report at the sentencing hearing, appellant did object to the prior convictions which the state intended to use to satisfy the habitual offender statute. The trial court, without requiring the state to produce evidence of the prior convictions, simply imposed the sentences on appellant as a subsequent felony offender. All evidence relied upon by the trial court to justify an enhanced sentence under section 775.084, Florida Statutes (1989), must be produced in open court. Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978). Since there was no evidence of appellant’s prior convictions adduced in open court and since appellant objected, it was error for the trial court to sentence him as a subsequent felony offender. Accordingly, we affirm appellant’s convictions, but we set aside his sentences and remand this case for a new sentencing hearing.
SCHOONOVER, C.J., and SCHEB and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baxter v. State, 599 So. 2d 721 (Fla. 2d DCA 1992)…eclared a habitual felony offender because certified copies of his prior convictions were not produced below. Generally, evidence of prior convictions in support of a habitual felony offender sentence must be produced in open court. Thomas v. State, 575 So. 2d 308, 309 (Fla. 2d DCA 1991). However, Thomas is distinguishable because defendant failed to object in this case. Moreover, it appears that at the sentencing hearing defendant waived the issue because he conceded he had the [*722] requisite prior felony…
Authorities Cited
- Grimmett v. State, 357 So. 2d 461 (Fla. 2d DCA 1978)