WALTER FRAZIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walter Frazier appeals his conviction for possession of a firearm by a felon and his sentence as a habitual felony offender. The court affirms the conviction but reverses the sentence and remands for resentencing because the record does not establish that the statutory requirements for habitual offender status were met at the time of sentencing.
The sentence must be vacated and remanded for resentencing because the appellate record is inconclusive as to whether the statutory requirements for habitual felony offender status existed at the time of sentencing, and the record lacks sufficient evidence regarding prior conviction dates, release dates, and proper admission of conviction documents.
[1] A sentence imposed under a habitual felony offender statute must be vacated if the record does not affirmatively show that the statutory requirements for habitualization…
[2] A defendant's testimony acknowledging prior felony convictions is insufficient, on its own, to establish the requirements for habitual offender sentencing.
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Join FLexlaw to unlock all legal intelligence“The appellate record contains no evidence to show that the requirements of the habitual felony offender statute existed at the time of sentencing.”
Establishes the core defect in the sentencing record—lack of evidence supporting the habitual offender enhancement.
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Join FLexlaw to unlock all legal intelligenceAfter a nonjury trial on three felony charges, the trial judge sentenced Frazier to seven years in prison followed by eight years' probation. After se…
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PARKER, Acting Chief Judge.
Walter Frazier appeals his conviction for possession of a firearm by a felon1 and the sentence imposed thereafter. We affirm the conviction, but reverse the sentence and remand for a new sentencing hearing.
After a nonjury trial on three felony charges, one of which was the firearms charge, the trial judge sentenced Frazier to a guidelines sentence of seven years in prison to be followed by eight years’ probation. After the trial court imposed the sentence, the prosecutor informed the judge that Frazier had been noticed as a habitual felony offender. The trial court then stated, “I will find he has the requisite two prior felony convictions_ It’s necessary for the protection of the public. Believe me, we need protection from him, that he be sentenced as a habitual offender for purposes of probation, not for purposes of the seven-year sentence.”
The appellate record contains no evidence to show that the requirements of the habitual felony offender statute
existed at the time of sentencing. The sentencing took place immediately after the nonju-ry trial, and the above-referenced comments were the only statements made regarding habitual offender status. Defense counsel stipulated during the trial that the defendant had a prior felony conviction, and the defendant testified that he had been convicted of a felony twice. There was no evidence regarding the date of commission of the felonies or his date of release. The record is inconclusive as to whether certified copies of the prior convictions were in evidence at the trial. The state moved them into evidence but the court never ruled that they were admitted. The nonjury trial data sheet prepared by the clerk lists these certified copies of judgments as exhibits but the clerk never noted if any of the exhibits were received into evidence, and the circuit court did not send this court the trial exhibits. Moreover, the record does not contain a presentence investigation report. It, therefore, is impossible to ascertain from this record whether the requirements for habitualization existed at the time of sentencing. See Rowland v. State, 583 So. 2d 813 (Fla. 2d DCA 1991). Thus the sentence must be vacated. Because Frazier failed to object at trial, the state will have the opportunity to prove that Frazier meets the requirements of the statute. See Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991).
Reversed and remanded for resentencing.
PATTERSON and ALTENBERND, JJ., concur. . Frazier was also convicted in the same trial for attempted burglary of a structure and possession of burglary tools. Both of these sentences were to a term of probation, concurrent with the probation received on the firearms charge.
.Section 775.084, Florida Statutes (1989) provides:
Habitual felony offenders and habitual violent felony offenders; extended terms; definitions; procedure; penalties.—
(1) As used in this act:
(a) "Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses;
2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony or other qualified offense of which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and
4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996)…nce, this case is distinguishable from those in which the record was inadequate for habitual offender sentencing but the defendant failed to object. In those instances, such as Davis v. State, 588 So. 2d 289 (Fla. 2d DCA 1991), and Frazier v. State, 595 So. 2d 131 (Fla. 2d DCA 1992), our court allowed the state a second chance to prove that the defendant met the requirements of the statute. In this case, however, the state had a sufficient opportunity to develop the record at the initial hearing but failed to…
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Baxter v. State, 599 So. 2d 721 (Fla. 2d DCA 1992)…led to prove that he had not been pardoned of the previous offense or that it has not been set aside in a post-conviction proceeding since these are affirmative defenses ... rather than matters required to be proved by the State.1 Frazier v. State, 595 So. 2d 131 (Fla. 2d DCA 1992) and Rowland v. State, 583 So. 2d 813 (Fla. 2d DCA 1991) do not require a different result, since those cases did not specifically address the criteria under section 775.084(l)(a)3-4. We certify conflict with Hodges v. State, 596 S…
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Queen Tucker Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992)…trial court on remand should permit the state to offer evidence concerning whether Moore should be considered as a habitual felony offender,2 and thereafter resentence Moore. See Kerney v. State, 605 So. 2d 159 (Fla. 2d DCA 1992); Frazier v. State, 595 So. 2d 131 (Fla. 2d DCA1992). If the trial court finds that Moore meets the requirements of the habitual offender statute, the specific findings should be included in the record. The sentences are reversed and remanded with directions. PATTERSON and ALTENBER…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orrin Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991)
- Rowland v. State, 583 So. 2d 813 (Fla. 2d DCA 1991)
- Maynard v. State, 583 So. 2d 813 (Fla. 5th DCA 1991)