JOE LEWIS MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mitchell appeals his conviction and sentencing for auto theft and misdemeanor theft of an auto tag, challenging whether habitual felony offender sentencing can be based on convictions occurring on the same date rather than sequentially. The Florida Supreme Court's decision in State v. Barnes resolved the sequential conviction issue adversely to Mitchell, but the court reversed the misdemeanor enhancement because the 1988 statutory rewrite eliminated habitual misdemeanor sentencing provisions.
Habitual felony offender sentencing does not require sequential convictions; therefore, the ten-year sentence for auto theft based on the 1984 convictions was proper. However, the 1988 statutory rewrite eliminated enhanced sentences for habitual misdemeanants, so the two-year sentence for petit theft must be reversed and remanded for resentencing.
[1] Prior felony convictions occurring on the same date may serve as a predicate for habitual felony offender sentencing.
[2] Habitual felony offender sentencing does not require sequential prior convictions.
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“sequential convictions are not a prerequisite for habitual felony offender sentencing under section 775.084(l)(a)l, Florida Statutes”
Establishes the holding that prior convictions need not occur sequentially, citing State v. Barnes
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Join FLexlaw to unlock all legal intelligenceMitchell was convicted by jury of felony auto theft and misdemeanor theft of an auto tag. He was sentenced to ten years as a habitual felony offender …
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[*1276] JOANOS, Chief Judge.
This appeal is taken from the imposition of habitual felony offender sentencing, after a jury found appellant guilty of the felony offense of auto theft, and the misdemeanor offense of theft of an auto tag. Appellant contends the trial court erred in imposing habitual felony offender sentencing based on three prior felony convictions which occurred on the same date, and in imposing an habitual offender sentence for the misdemeanor. The state maintains the habitual felony offender sentencing was proper, but concedes error with respect to the sentence imposed for the petit theft conviction. We affirm in part, and reverse in part.
Appellant’s contention regarding the propriety of his habitual felony offender sentence was decided adversely to his position by the supreme court’s decision in State v. Barnes, 595 So. 2d 22 (1992). In Barnes, in response to this court’s certified question, the court ruled that sequential convictions are not a prerequisite for habitual felony offender sentencing under section 775.084(l)(a)l, Florida Statutes (Supp. 1988). While agreeing that “the underlying philosophy of a habitual offender statute may be better served by a sequential conviction requirement,” the court concluded it had no authority to change the plain meaning of the statute where the legislature expressed its intent in unambiguous terms. 595 So. 2d at 24.
In view of the supreme court’s resolution of the sequential conviction requirement for habitual felony offender sentencing, appellant’s 1984 convictions provide the proper predicate for the ten-year habitual offender sentence imposed upon the auto theft conviction. However, the 1988 rewrite of the habitual offender statute eliminated the provisions for enhanced sentences for habitual misdemeanants. See Ch. 88-131, § 6, Laws of Fla.; DuBose v. State, 585 So. 2d 1198 (Fla. 1st DCA 1991); Peterson v. State, 576 So. 2d 1385 (Fla. 4th DCA 1991). In its present form, section 775.084 applies only to habitual felony offenders and habitual violent felony offenders. Therefore, the two-year sentence for the petit theft conviction must be reversed.
Accordingly, the ten-year sentence imposed pursuant to the habitual felony offender statute is affirmed, but the two-year sentence imposed for the petit theft conviction is reversed and remanded for resentencing.
ALLEN and WEBSTER, JJ., concur.
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Citator
Cited By
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Waters v. State, 657 So. 2d 39 (Fla. 1st DCA 1995)…the time period relevant to this case, the absence of sequential convictions did not preclude habitual offender classification and sentencing. State v. Tito, 616 So. 2d 39, 40 (Fla.1993); State n Barnes, 595 So. 2d 22 (Fla.1992); Mitchell v. State, 596 So. 2d 1275, 1276 (Fla. 1st DCA 1992). Since appellant committed the crimes for which habitual offender sentencing was imposed before the effective date of the amended statute, his reliance on the statutory amendments is unavailing. Accordingly, we affirm the…
Authorities Cited
- State v. Barnes, 595 So. 2d 22 (Fla. 1992)
- Vaughn M. Peterson v. State, 576 So. 2d 1385 (Fla. 4th DCA 1991)
- Varick F. DuBOSE v. State, 585 So. 2d 1198 (Fla. 1st DCA 1991)
- In the Interest of F.M., Jr., 585 So. 2d 1198 (Fla. 1st DCA 1991)