CHARLES VALENTINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Convictions for attempted murder, firearm possession by felon, and firearm use affirmed, but sentences vacated because the trial judge imposed a mandatory minimum without jury finding of firearm use and improperly applied habitual offender enhancement based on simultaneous prior convictions.
A mandatory minimum sentence for attempted murder cannot be imposed without a jury finding that a firearm was used, and habitual offender enhancement requires prior convictions arising from separate occasions, not simultaneous convictions.
[1] A mandatory minimum sentence for attempted murder under Florida law requires a jury finding that a firearm was used in the commission of the crime.
[2] Prior convictions occurring at the same time and arising from the same occasion cannot be counted as separate convictions for purposes of habitual offender enhancement.
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Join FLexlaw to unlock all legal intelligenceValentine was convicted of attempted murder, possession of a firearm by a convicted felon, and use of a firearm in commission of a felony. The sentenc…
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DAUKSCH, Judge.
This is an appeal from convictions and sentences. We affirm the convictions and vacate the sentences.
Appellant was convicted of attempted murder 2, possession of a firearm by convicted felon and use of a firearm in commission of a felony. The sentencing judge erred in imposing the mandatory minimum three year sentence for the attempted murder charge because there was no finding by the jury that a firearm was used in the commission of that crime. State v. Overfelt, 457 So. 2d 1385 (Fla.1984). The sentence as an habitual offender was also error because appellant was not previously convicted of two or more felonies, as that phrase is defined under Taylor v. State, 558 So. 2d 1092 (Fla. 5th DCA 1990). In order to qualify as two or more felonies, the prior convictions must arise from , separate convictions. Here, appellant’s prior convictions were all at the same time and can be considered for habitual offender purposes as only one prior conviction. Taylor. Although the habitual offender statute was amended on October 1, 1989, Taylor is controlling because the present crimes were committed on June 20, 1989, which is before the date of the amendment.
CONVICTIONS AFFIRMED, SENTENCES VACATED; REMANDED for RESENTENCING.
COBB and W. SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harrison v. State, 585 So. 2d 393 (Fla. 5th DCA 1991)…8 version of the Habitual Offender Act, the state must show that the second prior conviction was imposed for an offense committed after the date of the initial prior conviction. Walsh v. State, 579 So. 2d 908 (Fla. 5th DCA 1991); Valentine v. State, 577 So. 2d 714 (Fla. 5th DCA 1991); Barnes v. State, 576 So. 2d 758 (Fla. 1st DCA 1991); Reyes v. State, 573 So. 2d 1059 (Fla. 5th DCA 1991); Williams v. State, 573 So. 2d 451 (Fla. 4th DCA 1991); Bernard v. State, 571 So. 2d 560 (Fla. 5th DCA 1990); Taylor v. Sta…
Authorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Taylor v. State, 558 So. 2d 1092 (Fla. 5th DCA 1990)