DERRICK TYRONE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derrick Tyrone Smith appeals his sentence as a habitual violent felony offender, challenging whether prior convictions occurring after the conviction for which he is being habitualized can support habitualization, and whether he must have been released from prison for the prior conviction. The court affirmed the habitualization finding but reversed the sentence length as error.
The court held that a prior conviction occurring after the conviction for which habitualization is imposed can support habitualization if it occurred before sentencing. The court also held that the defendant need not have been released from prison at the time of the current offense for that prior felony to support habitualization. However, the court held that the fifteen-year minimum mandatory sentence was error and should have been ten years under Florida Statutes section 775.084(4)(b)2.
[1] A prior conviction can serve as the basis for habitual offender status even if it occurred after the conviction for which the defendant is being habitualized, provided th…
[2] For purposes of habitual offender statutes, the term "within 5 years of the defendant's release from a prison sentence" can be interpreted to mean "no later than" the def…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“section 775.084(l)(b)l, Florida Statutes (Supp.1988), does not preclude a conviction occurring after the conviction for which defendant is being habitualized from providing such a basis if, as here, the prior conviction occurred before defendant's sentencing for the offense for which he is being habitualized.”
Establishes that timing of prior conviction relative to sentencing, not relative to the conviction being habitualized, is determinative.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith was convicted of an offense and sentenced as a habitual violent felony offender. At the time of sentencing for the current offense, Smith had no…
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LEHAN, Judge.
Defendant appeals from his sentence as an habitual violent felony offender. We affirm in part and reverse in part.
We address three of his contentions. He contends that a prior conviction cannot be the basis for habitualization if that conviction occurred subsequent to the conviction for which he is being habitualized. However, section 775.084(l)(b)l, Florida Statutes (Supp.1988), does not preclude a conviction occurring after the conviction for which defendant is being habitualized from providing such a basis if, as here, the prior conviction occurred before defendant’s sentencing for the offense for which he is being habitualized.
Contrary to another of his contentions, we do not conclude that the fact that at the time of the offense for which he was being sentenced in this case he had not yet been released from prison under a sentence for a conviction of a prior felony renders that prior felony inapplicable to consideration as a prior felony enumerated in the habitual offender statute. We recognize that section 775.084(l)(b)2 provides that the offense for which defendant is being sentenced as a violent habitual offender be “within 5 years of the defendant’s release ... from a prison sentence ... imposed as a result of a prior conviction_” However, we conclude that the legislature intended the word “within” in the statutory context to mean “no later than.” The offense for which defendant was being sentenced in this case was no later than his release from prison for such a prior offense; in fact, he had evidently not been so released. The statutory interpretation contended by defendant would be irrational, and in interpreting legislative intent in the case of differing possible interpretations, rationality may properly be the guide. See Wakulla County v. Davis, 395 So. 2d 540, 543 (Fla.1981).
But we agree with defendant’s contention, the validity of which the state concedes, that the fifteen-year minimum mandatory sentence imposed was error. Under section 775.084(4)(b)2, which is applicable here, “[Sjuch offenders shall not be eligible for release for 10 years.” On remand, defendant’s sentence shall be corrected accordingly. Defendant need not be present for that purpose.
Affirmed in part, reversed in part, and remanded for correction of sentence.
DANAHY, A.C.J., and HALL, J., concur.
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Citator
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Jeffries v. State, 610 So. 2d 440 (Fla. 1992)…determined that a similarly worded statute1 would be rendered absurd if construed to exclude persons in prison for more than five years but who had not yet been released. The term “within” thus was construed to mean “no later than.” Smith v. State, 584 So. 2d 1107, 1108 (Fla. 2d DCA 1991). The First District expressly relied on Smith in reaching the same conclusion about the statute at issue here. Jeffries, 600 So. 2d at 565. We have stated elsewhere that common law rules of construction, such as the one app…
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Jeffries v. State, 600 So. 2d 565 (Fla. 1st DCA 1992)…e affirm, finding that appellant did not present sufficient evidence warranting a jury instruction on the defense of necessity, and that the trial court correctly ruled appellant to be an habitual offender based upon the reasoning of Smith v. State, 584 So. 2d 1107 (Fla. 2d DCA 1991). However, we certify the following question as one of great public importance: UNDER THE REQUIREMENT OF THE HABITUAL OFFENDER STATUTE, SECTION 775.084(l)(a)2., FLORIDA STATUTES (1988 SUPP.), THAT THE OFFENSE FOR WHICH A DEFENDAN…
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Thadius Lee Gregory v. State, 618 So. 2d 798 (Fla. 2d DCA 1993)…he was being sentenced to establish his habitual offender status. We find no merit in this argument since this court has approved the consideration of subsequent convictions in determining whether a defendant is a habitual offender. Smith v. State, 584 So. 2d 1107 (Fla.2d DCA 1991), review denied, 595 So. 2d 557 (Fla.1992); but cf., Palmore v. State, 584 So. 2d 135 (Fla. 1st DCA 1991) (convictions entered after date offenses at sentencing occurred could not be relied on as prior convictions). The appellant…
Authorities Cited
- Wakulla Cnty. v. Davis, 395 So. 2d 540 (Fla. 1981)