GARY BANKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Banks appealed his habitual offender sentence imposed after a plea of nolo contendere to burglary and possession of burglary tools charges. The court reversed and remanded for resentencing under the guidelines, holding that the state cannot seek a harsher habitual violent felony offender classification on remand when it previously conceded that only two prior convictions existed.
The court reversed the habitual offender sentence and remanded for resentencing under the guidelines. The state cannot seek habitual violent felony offender classification on remand because: (1) the habitual offender sentence violated the sequential conviction requirement established in Barnes v. State; and (2) attempting to impose a harsher sentence on remand violates due process principles established in North Carolina v. Pearce.
[1] Habitual offender classification must be supported by sequential prior convictions.
[2] A state may not seek habitual offender status on remand using prior convictions not originally relied upon if the state previously conceded those were the only prior conv…
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Join FLexlaw to unlock all legal intelligence“habitual offender classification must be supported by sequential convictions”
Establishes the legal requirement that the court violated in imposing habitual offender status based on the prior convictions.
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Join FLexlaw to unlock all legal intelligenceBanks pleaded nolo contendere to three counts of burglary and one count of possession of burglary tools in exchange for a recommendation of guidelines…
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JOANOS, Chief Judge.
Gary Banks has appealed the imposition of habitual offender sentencing following his plea of nolo contendere to three counts of burglary of a structure and one count of possession of burglary tools. We reverse and remand for resentencing under the guidelines. Banks entered his plea in return for a recommendation of guidelines sentencing. The state thereafter filed notice of its intent to seek habitual offender classification, and at sentencing offered as predicate convictions two August 27, 1987 convictions for aggravated assault and grand theft of a firearm. The state averred that these were Banks’ only prior convictions. The trial court found that Banks qualified as an habitual offender, and sentenced him as such to concurrent 3¾⅛ year terms.
Banks argues on appeal that reversal for resentencing is required by Barnes v. State, 576 So. 2d 758 (Fla. 1st DCA 1991) and Fuller v. State, 578 So. 2d 887 (Fla. 1st DCA 1991), and that resentencing should be pursuant to the guidelines. The state concedes that reversal is necessary. However, it goes on to argue that Doggett v. State, 584 So. 2d 116 (Fla. 1st DCA 1991) authorizes the state, on remand, to use the August 27, 1987 conviction for aggravated assault (a violent felony) and the current burglary convictions to seek habitual violent felony offender classification.
We agree that reversal of the habitual offender sentence imposed herein is required by Barnes (habitual offender classification must be supported by sequential convictions), but find that Doggett does not authorize the procedure proposed by the state on remand. Doggett held only that it does not violate double jeopardy for the state, on remand for resentencing after a Barnes violation, to seek reimposition of habitual offender status using prior convictions not originally relied on. Doggett at 116-17 (emphasis supplied). Here, the state conceded below that the two convictions imposed on August 27, 1987 were Banks’ only prior convictions.
Further, in Taylor v. State, 576 So. 2d 968 (Fla. 5th DCA 1991), the court affirmatively found that the action proposed by the state “constitutes punishment more harsh than the sentence reversed on the first appeal (the habitual violent felony offender includes a 10-year minimum mandatory sentence) and is therefore prone to discourage appeals in violation of constitutional due process and the dictates of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).” Taylor at 969.
The habitual offender sentence imposed herein is vacated, and the case remanded for resentencing under the guidelines.
SHIVERS and ZEHMER, JJ„ concur.
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Cited By
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Gahley v. State, 605 So. 2d 1309 (Fla. 1st DCA 1992)…o. 2d 948, 950 (Fla. 1st DCA 1991). The sentence imposed herein must therefore be reversed and the case remanded for resentencing. On remand, the state may not seek to have Gahley sentenced as an habitual violent felony offender. See Banks v. State, 591 So. 2d 282 (Fla. 1st DCA 1991). Reversed and remanded for resentenc-ing. JOANOS, C.J., and BOOTH and WIGGINTON, JJ„ concur.…
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Aurther Landers v. State, 691 So. 2d 550 (Fla. 4th DCA 1997)…nts out that he lacked the sequential prior convictions necessary to be classified as a habitual felony offender. See § 775.084(5), Fla. Stat. (1995). Thus, we reverse the original felony offender sentence imposed by the trial court. Banks v. State, 591 So. 2d 282, 288 (FlaA.pp.1st DCA 1992); Taylor v. State, 558 So. 2d 1092, 1093 (Fla. 5th DCA 1990). remand, the trial court cannot sentence Appellant as a habitual violent felo-felooffender because such a sentence would constitute a harsher punishment than Ap…
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Taylor v. State, 615 So. 2d 756 (Fla. 2d DCA 1993)…udice to his filing a mo [*757] tion for postconviction relief pursuant to Florida Rules of Criminal Procedure 3.850. State v. Barber, 301 So. 2d 7 (Fla.1974); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). Taylor’s reliance upon Banks v. State, 591 So. 2d 282 (Fla. 1st DCA 1991), is misplaced. The court in Banks found the double jeopardy prohibition violated when the state initially failed to provide the trial court with sequential convictions essential at that time for enhancement under section 775.084(…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Barnes v. State, 576 So. 2d 758 (Fla. 1st DCA 1991)
- Fuller v. State, 578 So. 2d 887 (Fla. 1st DCA 1991)
- Doggett v. State, 584 So. 2d 116 (Fla. 1st DCA 1991)
- Taylor v. State, 576 So. 2d 968 (Fla. 5th DCA 1991)