LEON DEVINCE KERNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leon Devince Kerney appealed his designation and sentence as a habitual violent felony offender for attempted manslaughter with a weapon. The Florida appellate court reversed, holding that the state failed to establish that Kerney met the statutory criteria under section 775.084(1)(b), as he lacked an enumerated violent felony conviction or release within five years of the instant offense.
The court held that there was insufficient evidence in the record to show Kerney met the statutory criteria. Although he had a robbery conviction (an enumerated violent felony) in 1976, there was no evidence he was released from custody for the robbery within five years of December 19, 1990. His burglary convictions were not enumerated violent felonies.
[1] A defendant may be designated a habitual violent felony offender if they have a conviction for an enumerated violent felony within five years of the commission of the ins…
[2] Burglary of a structure, even if a felony, is not an enumerated violent felony for the purposes of habitual violent felony offender sentencing.
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Join FLexlaw to unlock all legal intelligence“Section 775.084(l)(b)2, Florida Statutes (1989) allows the trial court to designate a defendant as a habitual violent felony offender if the person has a conviction for an enumerated-violent felony within five years of the commission of the instant offense or has been released from a sentence for an enumerated violent felony within five years from the commission of the instant offense.”
Establishes the statutory standard for habitual violent felony offender designation.
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Join FLexlaw to unlock all legal intelligenceKerney was charged with attempted manslaughter with a weapon on December 19, 1990. His prior criminal history included: a 1976 robbery conviction (ten…
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PARKER, Judge.
Leon Devince Kerney appeals his designation and sentence as a habitual violent felony offender. The crime for which the trial court sentenced Kerney was attempted manslaughter with a weapon, which resulted in a violent habitual felony offender sentence of thirty years’ imprisonment without eligibility for release for ten years. We reverse and remand for resentencing.
The state noticed Kerney that it intended to treat him as a habitual violent felony offender. The record contains a career criminal prosecution packet evidencing Ker-ney’s convictions and sentences to be: Conviction Sentence
1971— Uttering a forged instrument Probation; revoked in 1972 and and sentenced to five years
1976— Robbery Ten years beginning in 1977
1983— Burglary of a structure (third-degree felony) Five years
1983— Burglary of a structure (third-degree felony) Ten years consecutive to above sentence.
The record also contains an affidavit which stated that Kerney was released from custody on June 14, 1990.
Section 775.084(l)(b)2, Florida Statutes (1989) allows the trial court to designate a defendant as a habitual violent felony offender if the person has a conviction for an enumerated-violent felony1 within five years of the commission of the instant offense or has been released from a sentence for an enumerated violent felony within five years from the commission of the instant offense. Kerney committed attempted manslaughter with a weapon on December 19, 1990. The record contains evidence that Kerney had a conviction for one enumerated felony, a robbery, in 1976. There is no evidence in the record before this court that Kerney was released from custody for the robbery within five years of his commission of the instant crime. Burglary of a structure, a crime for which Kerney has been convicted more recently, is not an enumerated felony. Thus, there is insufficient evidence in the record to show that Kerney met the criteria set out in section 775.084(l)(b). This court, therefore, must reverse his designation and sentence as a habitual violent felony offender. Because Kerney failed to object at sentencing, the state on remand shall have the opportunity to prove that Kerney meets the requirements of the statute, either as a habitual violent felony offender or habitual felony offender. See Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991).
Reversed and remanded for a new sentencing hearing consistent with this opinion.
LEHAN, C.J., and PATTERSON, J., concur. . These enumerated violent felonies are arson; sexual battery; robbery; kidnapping; aggravated child abuse; aggravated assault; murder; manslaughter; unlawful throwing, placing, or discharging of a destructive device or bomb; armed burglary; or aggravated battery.
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…t DCA 1993) (ordering resen-tencing where defendant did not qualify for HFO because present offense did not occur within five years of his release on parole from a prison sentencing as required by section 775.084, Florida Statutes); Kerney v. State, 605 So. 2d 159 (Fla. 2d DCA 1992) (resentencing ordered where there was insufficient proof that defendant was released from custody within five years of commission of instant crime); Killingsworth v. State, 584 So. 2d 647 (Fla. 1st DCA 1991) (resentencing required…
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Queen Tucker Moore v. State, 608 So. 2d 926 (Fla. 2d DCA 1992)…e trial court that the requirements were lacking, the 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…
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Bozarth v. State, 789 So. 2d 419 (Fla. 2d DCA 2001)…d theft is not an enumerated felony and cannot be used to qualify Bozarth as a habitual violent felony offender if his conviction or release from a prison or supervisory sentence for robbery is outside the five-year time period. See Kerney v. State, 605 So. 2d 159 (Fla. 2d DCA 1992).1 Although the State, at sentencing, advised the trial court regarding the date of Bozarth’s release from prison on the grand theft conviction, it did not introduce any evidence into the record regarding that release date. Furthe…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orrin Johnson v. State, 576 So. 2d 916 (Fla. 2d DCA 1991)