MICHAEL PAUL GAHLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Gahley appealed his sentencing as a habitual offender after pleading nolo contendere to robbery with a weapon and resisting arrest with violence. The court reversed because one of the two predicate felony convictions used to classify him as a habitual offender was a juvenile adjudication of delinquency, which does not constitute a "conviction" under Florida law.
Juvenile adjudications of delinquency cannot be used as predicate convictions for habitual offender classification because section 39.053(4), Florida Statutes provides that an adjudication of delinquency "shall not be deemed a conviction," and section 775.084 requires prior felony "convictions" without specifically including juvenile adjudications.
[1] A juvenile adjudication of delinquency does not constitute a "conviction" for the purpose of habitual offender sentencing.
[2] Habitual offender status cannot be predicated on juvenile adjudications of delinquency when the statute requires prior felony convictions.
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Join FLexlaw to unlock all legal intelligence“an adjudication of delinquency "shall not be deemed a conviction."”
Establishes the statutory basis for excluding juvenile adjudications as predicate convictions
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Join FLexlaw to unlock all legal intelligenceGahley pleaded nolo contendere to robbery with a weapon and resisting arrest with violence. At sentencing, the state presented two predicate convictio…
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[*1310] PER CURIAM.
Michael Paul Gahley has appealed from sentencing as an habitual offender, imposed after he pled nolo contendere to robbery with a weapon and resisting arrest with violence. Gahley alleges that he could not properly be classified as an habitual offender, in that one of the two predicate felony convictions required by section 775.-084(l)(a)l., Florida Statutes (1989), and offered by the state, was a juvenile adjudication of delinquency. We reverse and remand for resentencing.
As noted above, Gahley pled nolo con-tendere to robbery with a weapon and resisting arrest with violence. At the subsequent sentencing proceeding, the state presented as predicate convictions for habitual offender classification a 1989 unarmed robbery conviction, and a 1988 juvenile adjudication of delinquency for aggravated assault and opposing an officer with violence. Defense counsel affirmatively declined to argue that Gahley did not qualify as an habitual offender. The court made a general finding that he qualified as such, and sentenced Gahley as an habitual offender. Gahley argues that he could not properly be classified as an habitual offender, in that a juvenile adjudication of delinquency is not a “conviction.” § 39.053(4), Fla.Stat. (1989). The state responds that defense counsel conceded Gahley’s qualification as an habitual offender, and further argues that any error was harmless, in that the remaining 1989 robbery conviction would support the more severe habitual violent felony offender sentencing classification. The state therefore suggests that, if the sentence herein is reversed, it be allowed to seek the latter classification on remand.
In Shook v. State, 603 So. 2d 617 (Fla. 1st DCA 1992), the defendant pled nolo con-tendere, and was classified as an habitual offender based on two previous juvenile delinquency adjudications. The state conceded on appeal that habitualization was improperly predicated on these adjudications, and the court agreed. It noted the provision of section 39.10(4), Florida Statutes (predecessor of section 39.053, Florida Statutes) that an adjudication of delinquency “shall not be deemed a conviction.” Because section 775.084 requires prior felony “convictions” without specifically including juvenile adjudications, the court held that habitualization cannot be based upon juvenile adjudications. Shook at 617 (emphasis in original).
After eliminating the juvenile adjudication improperly relied on below, there are insufficient felony convictions to qualify Gahley as an habitual offender. The failure of defense counsel to object to that classification does not, as the state argues, bar consideration of the issue on appeal. Without the necessary predicate convictions Gahley’s sentence as an habitual offender is illegal, and no objection is required to raise the issue of an illegal sentence on direct appeal. Williams v. State, 591 So. 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 resentencing.
JOANOS, C.J., and BOOTH and WIGGINTON, JJ„ concur.
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State v. J.M., 824 So. 2d 105 (Fla. 2002)…urthermore, Florida courts have held that adjudications of delinquency cannot be used as “convictions” for the purpose of sentencing a defendant as a habitual offender. See Cotton v. State, 652 So. 2d 1260, 1260 (Fla. 1st DCA 1995); Gahley v. State, 605 So. 2d 1309, 1310 (Fla. 1st DCA 1992); Shook v. State, 603 So. 2d 617, 617 (Fla. 1st DCA 1992); see also City of Jacksonville v. Caverly, 727 So. 2d 307, 308 (Fla. 1st DCA 1999) (holding statute that permitted state and local subdivisions to recover per diem ch…
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Robinson v. State, 692 So. 2d 883 (Fla. 1997)…tus does not establish such status when it appears that the necessary predicate offenses are absent. See Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1998), disapproved on other grounds, White v. State, 666 So. 2d 896 (Fla.1996); Gahley v. State, 605 So. 2d 1309 (Fla. 1st DCA 1992); Trott v. State, 579 So. 2d 807 (Fla. 5th DCA 1991). Nevertheless, because of the defense’s concession, the state did not have the opportunity to offer evidence establishing that Robinson’s Georgia offense qualified as a predicat…
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Speights v. State, 711 So. 2d 167 (Fla. 1st DCA 1998)…hite v. State, 666 So. 2d 895 (Fla.1996), this court held that an HVFO sentence is illegal if the necessary predicate conviction is absent and that no contemporaneous objection is necessary to preserve the issue for appeal. See also Gahley v. State, 605 So. 2d 1309, 1310 (Fla. 1st DCA 1992); Williams v. State, 591 So. 2d 948, 950 (Fla. 1st DCA 1991), quashed on other grounds, 599 So. 2d 998 (Fla.1992) (“Without the necessary predicate convictions appellant’s sentence as a habitual offender is illegal. No objec…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 591 So. 2d 948 (Fla. 1st DCA 1991)
- Shook v. State, 603 So. 2d 617 (Fla. 1st DCA 1992)
- Gary Banks v. State, 591 So. 2d 282 (Fla. 1st DCA 1991)