TONY LEE WAGNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony Lee Wagner appealed two criminal convictions, challenging the constitutionality of Florida's habitual felony offender statute and the trial court's sentencing as a habitual offender. The appellate court rejected the constitutional challenge but reversed the habitual offender sentence because it was based on convictions entered on the same day, which violates the requirement for sequential convictions.
The court rejected the constitutional challenge to the habitual felony offender statute. However, the court reversed the habitual offender sentence because habitualization requires sequential convictions under the 1988 version of the statute, and Wagner's prior convictions were all entered on the same day. The court also found error in the written judgment's credit for time served calculation and remanded for correction.
[1] The 1988 and 1989 versions of the habitual felony offender statute are constitutional.
[2] Habitual offender sentencing requires sequential convictions under the 1988 version of the statute.
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Join FLexlaw to unlock all legal intelligence“habitualization must be supported by sequential convictions in the 1988 version of the statute”
Establishes the critical legal standard that defeats Wagner's habitual offender sentence, as his prior convictions were entered on the same day rather than sequentially
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Join FLexlaw to unlock all legal intelligenceWagner was convicted in case 86-2192 of three counts of burglary of a dwelling and sentenced to three concurrent fifteen-year terms. In case 89-3284, …
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ZEHMER, Judge.
Tony Lee Wagner appeals two final judgments. In circuit court case number 86-2192, he was adjudged guilty of three counts of burglary of a dwelling, after the court revoked his probation, and was sentenced to three concurrent fifteen-year terms of imprisonment. In circuit court case number 89-3284, he was adjudged guilty of burglary, possession of burglary tools, and two counts of battery on a law enforcement officer and was sentenced as a habitual felony offender to two consecutive ten-year terms of imprisonment on the first two charges and to two concurrent ten-year terms of imprisonment on the battery charges. Wagner raises three points on this appeal.
Wagner’s first point contends that the 1988 and 1989 versions of the habitual felony offender statute, section 775.084, Florida Statutes, are unconstitutional. We reject this argument on the authority of Steiner v. State, 573 So. 2d 1014 (Fla. 1st DCA 1991). See also King v. State, 557 So. 2d 899, 903 (Fla. 5th DCA 1990), rev. denied, 564 So. 2d 1086 (Fla.1990) (“Habitual offender statutes were constitutional prior to the advent of the amendment which required a finding that the enhanced sentence was necessary for the protection of the public. The fact that this requirement has been deleted effective October 1, 1988, does not render the statute unconstitutional.”); Arnold v. State, 566 So. 2d 37 (Fla. 2d DCA 1990) (1988 amended habitual offender statute does not violate the equal protection clause and does not deny a defendant due process of law).
Wagner next contends that in case number 89-3284, the trial court erred in sentencing him as a habitual felony offender under section 775.084, Florida Statutes (1989), based on his previous convictions in case number 86-2192, because those convictions were all entered on the same day. We reverse the habitual offender sentence and remand for resentencing on the authority of Barnes v. State, 576 So. 2d 758 (Fla. 1st DCA 1991), holding that “habitualization must be supported by sequential convictions in the 1988 version of the statute.”
Wagner’s final point contends that the written judgment in case number 86-2192 erroneously lists credit for time served as “9 years + 68 days,” and that this is contrary to the oral pronouncement at the sentencing hearing of “nine years and a hundred and sixty eight days.” The state properly concedes error as to this point, and it can be corrected to the extent necessary on remand for resentencing to conform with the oral pronouncement made at the sentencing hearing.
REVERSED AND REMANDED.
JOANOS, J, and CAWTHON, Senior Judge, concur.
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Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)…DCA 1991). We find it unnecessary to address appellant’s other constitutional challenges to section 775.084, since they have been considered and rejected numerous times by this court and other district courts of appeal. See, e.g., Wagner v. State, 578 So. 2d 56 (Fla. 1st DCA 1991); Wilson v. State, [*1372] 574 So. 2d 1170 (Fla. 1st DCA 1991), review denied, 583 So. 2d 1038 (Fla.1991); Smith v. State, 573 So. 2d 1015 (Fla. 1st DCA 1991); Akbar v. State, 570 So. 2d 1047 (Fla. 1st DCA 1990); Barber v. State,…
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…defendant was released from custody within five years of commission of instant crime); Killingsworth v. State, 584 So. 2d 647 (Fla. 1st DCA 1991) (resentencing required where State did not provide proper fingerprint authentication); Wagner v. State, 578 So. 2d 56 (Fla. 1st DCA 1991) (ordering resentencing after trial court erred in sentencing defendant as HFO based on previous convictions all entered on the same day); Flewelling v. State, 576 So. 2d 742 (Fla. 1st DCA 1991) (resentencing ordered where trial c…
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Hale v. State, 589 So. 2d 1000 (Fla. 1st DCA 1991)…llenges to section 775.084, Florida Statutes (1989), with the observation that the arguments advanced by appellant have been analyzed in depth and rejected numerous times by this court and other district courts of appeal. See, e.g., Wagner v. State, 578 So. 2d 56 (Fla. 1st DCA 1991); Wilson v. State, 574 So. 2d 1170 (Fla. 1st DCA 1991), review denied, 583 So. 2d 1038 (Fla.1991); Smith v. State, 573 So. 2d 1015 (Fla. 1st DCA 1991); Akbar v. State, 570 So. 2d 1047 (Fla. 1st DCA 1990); Barber v. State, 564 So.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Caracciolo v. State, 557 So. 2d 899 (Fla. 4th DCA 1990)
- Barnes v. State, 576 So. 2d 758 (Fla. 1st DCA 1991)
- Arnold v. State, 566 So. 2d 37 (Fla. 2d DCA 1990)
- Wells v. State, 573 So. 2d 1014 (Fla. 1st DCA 1991)