KURT VAN BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kurt Van Bryant appealed his sentence as a habitual violent felony offender, arguing that the trial court failed to make required statutory findings that his prior robbery conviction had not been pardoned or set aside. The Fourth District Court of Appeal reversed, holding that trial courts must make these findings regardless of whether the defendant raises them as an affirmative defense.
The trial court must make specific findings pursuant to sections 775.084(1)(b)3 and 4 before sentencing a defendant as a habitual offender, regardless of whether the defendant affirmatively raises the issue as a defense. Van Bryant's sentence as a habitual offender was therefore erroneous and must be reversed.
[1] A trial court must make specific findings required by the habitual felony offender statute before sentencing a defendant as a habitual felony offender.
[2] A trial court errs by failing to make findings pursuant to statutory provisions requiring the court to determine if prior convictions have been pardoned or set aside when…
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Join FLexlaw to unlock all legal intelligence“A trial court must specifically make the findings required by section 775.084(l)(a) before sentencing a defendant as a habitual felony offender.”
Establishes the core holding that trial courts have a mandatory duty to make statutory findings, citing Simon v. State
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Join FLexlaw to unlock all legal intelligenceVan Bryant was sentenced as a habitual violent felony offender based on a prior conviction for robbery. The trial court did not make specific findings…
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PER CURIAM.
Appellant contends that his sentence as a habitual violent felony offender must be reversed because the trial court failed to find, as required by sections 775.084(1)(b)3 and 4, Florida Statutes (1989), that his prior conviction for robbery had not been pardoned or set aside. We reverse.
The state argues that since appellant failed to raise these arguments at sentencing, it had no duty to prove these two elements of the habitual offender statute. The First District Court of Appeal rejected a similar argument in Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1992) and reversed the defendant’s sentence as a habitual offender. The Anderson court stated:
However, it must be acknowledged that the Supreme Court in Eutsey did refer to the requirements for habitual offender classification set forth in section 775.084(1)(a)3. and 4. as affirmative defenses, which in our view creates doubt as to the proper application of these statutory requirements. Therefore, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, we certify the following question as one of great public importance:
Does the holding in Eutsey v. State, 383 So. 2d 219 (Fla.1980) that the state has no burden of proof as to whether the convictions necessary for habitual felony offender sentencing have been pardoned or set aside, in that they are “affirmative defenses available to [a defendant],” Eutsey at 226, relieve the trial court of its statutory obligation to make findings regarding those factors, if the defendant does not affirmatively raise, as a defense, that the qualifying convictions provided by the state have been pardoned or set aside? Id. at 1121. In Simon v. State, 589 So. 2d 381 (Fla. 4th DCA 1991), this court held:
We agree with Simon’s contention that the findings required by the habitual felony offender statute, section 775.-084(l)(a)3, 4, Florida Statutes (1989), were not met. A trial court must specifically make the findings required by section 775.084(l)(a) before sentencing a defendant as a habitual felony offender. Id. at 382. Based on this court’s decision in Simon and the First District Court of Appeal’s decision in Anderson, we hold that the trial court erred when it failed to make findings pursuant to section 775.-084(1)(b)3 and 4.1
We decline appellant’s invitation to reconsider this court’s previous opinions declaring section 775.084, Florida Statutes (1989), as amended by Chapter 89-280, Laws of Florida, constitutional and not violative of the single subject rule. See McCall v. State, 583 So. 2d 411 (Fla. 4th DCA 1991), juris, accepted, 593 So. 2d 1052 (Fla.1992); Jamison v. State, 583 So. 2d 413 (Fla. 4th DCA), rev. denied, 591 So. 2d 182 (Fla.1991). Appellant could have been ha-bitualized as a habitual violent felony offender under the pre-amended version of the statute and therefore cannot rely on the unconstitutionality of the amendment to void his sentence. See Hale v. State, 589 So. 2d 1000 (Fla. 1st DCA 1991); McNeil v. State, 588 So. 2d 303 (Fla. 1st DCA 1991); King v. State, 585 So. 2d 1199 (Fla. 1st DCA 1991); Wright v. State, 579 So. 2d 418 (Fla. 4th DCA 1991).
Accordingly, we reverse appellant’s sentence as a habitual offender and remand this matter to the trial court for resentencing. On remand, the trial court may again sentence appellant as a habitual offender upon making findings supported by the evidence pursuant to section 775.-084(1)(b). We also adopt and certify the question certified in Anderson as one of great public importance.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
GLICKSTEIN, C.J., and DELL and WARNER, JJ., concur. . We recognize that our holding conflicts with the Second District’s holding in Stewart v. State, 385 So. 2d 1159 (Fla. 2d DCA 1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Spriggs v. State, 615 So. 2d 828 (Fla. 4th DCA 1993)…encing situations — such as the death penalty, sentencing a juvenile as an adult, or a guidelines departure sentence — grows out of statutory language in the penalty provision adopted by the legislature. 546 So. 2d at 728-29. In Van Bryant v. State, 602 So. 2d 582 (Fla. 4th DCA 1992), quashed, 613 So. 2d 474 (Fla.1993),1 we ourselves took these decisions one step further and required record findings even where a defendant had made no suggestion or claim of pardon or a. vacation of the judgment of conviction,…
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Wilson v. State, 605 So. 2d 141 (Fla. 4th DCA 1992)…GLICKSTEIN, Chief Judge, concurring specially. I concur with the reversal of Van Bryant v. State, 602 So. 2d 582 (Fla. 4th DCA 1992), and with the certification of the same question certified therein.…1 / 2
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Critton v. State, 604 So. 2d 933 (Fla. 1st DCA 1992)…ee also, Hodges v. State, 596 So. 2d 481 (Fla. 1st DCA 1992). Other districts have taken various views on this issue. E.g., compare Baxter v. State, 599 So. 2d 721 (Fla. 2d DCA 1992), petition for review filed, case no. 79,993, with Bryant v. State, 602 So. 2d 582 (Fla. 4th DCA 1992), petition for review filed, case no. 80,033. But the state properly concedes that in this district the issue is controlled by Anderson. After the judgments and sentences were entered in this case the appellant filed a notice o…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1991)
- Wright v. State, 579 So. 2d 418 (Fla. 4th DCA 1991)
- Kemp v. State, 583 So. 2d 411 (Fla. 4th DCA 1991)
- Bush Wade Holland v. State, 585 So. 2d 1199 (Fla. 1st DCA 1991)
- McNEIL v. State, 588 So. 2d 303 (Fla. 1st DCA 1991)
- Jamison v. State, 583 So. 2d 413 (Fla. 4th DCA 1991)
- Simon v. State, 589 So. 2d 381 (Fla. 4th DCA 1991)
- Hale v. State, 589 So. 2d 1000 (Fla. 1st DCA 1991)
- Stewart v. State, 385 So. 2d 1159 (Fla. 2d DCA 1980)