KEVIN M. MEEHAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Meehan appealed his sentence as a habitual felony offender, arguing he did not receive prior written notice as required by statute. The court affirmed the habitual offender sentence but remanded to correct a scrivener's error in the written judgment that reflected a higher degree felony than what was agreed to in the plea.
Service of notice on defense counsel satisfies the statutory requirement for notice to the defendant. The habitual felony offender sentence is affirmed, but the case is remanded to correct the scrivener's error in the written judgment.
[1] Service of written notice of the state's intent to seek habitual felony offender classification on the defendant's attorney satisfies statutory notice requirements.
[2] A written judgment must conform to the plea agreement and the oral pronouncement of the court at sentencing.
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Join FLexlaw to unlock all legal intelligence“Written notice shall be served on the defendant and his attorney a sufficient 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.”
The statutory requirement under Florida Statutes section 775.084(3)(b) governing notice of habitual felony offender classification.
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Join FLexlaw to unlock all legal intelligenceOn June 20, 1990, Meehan was charged with burglary of a dwelling and assault. On December 7, 1990, he signed a plea agreement reducing the charge to b…
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JOANOS, Chief Judge.
Appellant seeks review of his sentence as an habitual felony offender, asserting that he did not receive the requisite prior written notice of the state’s intention to seek habitual felony offender sentencing. We affirm the sentence imposed, but remand the matter for correction of the written judgment.
An information charged that on June 20, 1990, appellant committed the offenses of burglary of a dwelling, a second degree felony, and assault. On December 7, 1990, appellant signed a plea, waiver, and consent form, pleading nolo contendere to a reduced charge of burglary of a structure. The plea form contains the following provision:
This No Contest plea is entered by Defendant in return for a reduction of the original charge to Burglary of a Structure, a third degree felony. There are no other special terms or conditions of this plea.
The plea was conditionally accepted, a pre-sentence investigation was ordered, and sentencing was set for January 15, 1991. On that date, the assistant state attorney advised the trial court that defense counsel had been served that day with notice of the state’s intent to seek habitual felony offender classification and sentencing. When the attorney advised that the documentation in support of appellant’s classification as an habitual felony offender had not been received, sentencing was deferred until February 12, 1991.
At sentencing on February 12, 1991, defense counsel announced to the trial court that appellant had stated he did not receive the notice of habitual offender status. Upon ascertaining that a copy of the notice had been received by appellant’s counsel, the trial court ruled that appellant had been served. Based upon certified copies of appellant’s 1986 conviction of burglary of a structure, and 1980 conviction of burglary of a dwelling, the trial court adjudicated appellant guilty of burglary of a structure, found he qualified as an habitual felony offender, and imposed a sentence of ten years. However, the written judgment reflects adjudication for burglary of an occupied structure, a second degree felony, rather than the third degree felony of a structure set forth in the plea agreement and orally pronounced by the court at sentencing.
The sole issue raised in this appeal is whether written notice of the state’s intent to seek habitual offender classification must be served on the defendant, or whether service on defense counsel satisfies the requirements of section 775.084(3)(b), Florida Statutes (1989), which provides:
Written notice shall be served on the defendant and his attorney a sufficient 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.
Appellant contends that notice of his lawyer does not qualify as notice to him. In Showers v. State, 570 So. 2d 377, 378 (Fla. 1st DCA 1990), the court decided the point adversely to appellant’s position.
Accordingly, appellant’s judgment of conviction and sentence as an habitual felony offender is affirmed, but the cause is remanded for correction of the scrivener’s error on the written judgment to conform to the plea agreement and the oral pronouncement.
WOLF and KAHN, JJ., concur.
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Johnson v. State, 597 So. 2d 353 (Fla. 1st DCA 1992)…ck of notice argument. Appellant next argues that the sentence is illegal because, while the notice of intent was served on defense counsel, it was not served on appellant himself. This court expressly rejected the same argument in Meehan v. State, 590 So. 2d 517 (Fla. 1st DCA 1991), and Showers v. State, 570 So. 2d 377 (Fla. 1st DCA 1990). Appellant’s third argument is that the trial court committed reversible error in failing to make the findings required by the habitual offender statute. Section 775.-084…
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Emmitt Glenn v. State, 592 So. 2d 382 (Fla. 1st DCA 1992)…PER CURIAM. AFFIRMED. See Showers v. State, 570 So. 2d 377 (Fla. 1st DCA 1990); Meehan v. State, 590 So. 2d 517 (Fla. 1st DCA 1991). JOANOS, C.J., and MINER and WEBSTER, concur.…
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Arden Dell v. State, 593 So. 2d 622 (Fla. 1st DCA 1992)…rounds 1), and 2). See Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1991). With regard to ground 4), we affirm despite the court’s failure to attach supporting portions of the record, in that the allegation is without merit. See Meehan v. State, 590 So. 2d 517 (Fla. 1st DCA 1991). However, ground 3), if true, might entitle Dell to relief. Therefore, the order must be reversed as to that ground, and the case remanded for attachment of a copy of that portion of the files and records conclusively showing tha…
Authorities Cited
- Showers v. State, 570 So. 2d 377 (Fla. 1st DCA 1990)