HERMAN WINFORD DONAHUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A habitual violent felony offender sentence based on a conviction for aggravated battery between October 1, 1989, and May 2, 1991, is illegal because the statute was reenacted after being found unconstitutional.
Appellant was sentenced as a habitual violent felony offender, in part due to a 1990 conviction for aggravated battery. This conviction occurred durin…
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PER CURIAM.
Appellant raises a number of issues on appeal, only one of which has merit. Appellant contends that based on Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991), affirmed, State v. Johnson, 616 So. 2d 1 (Fla.1993), the trial court erred in finding appellant an habitual violent felony offender, in part, due to his January 16, 1990 conviction and sentence for aggravated battery.
We find merit in appellant’s argument and remand the cause for the trial court to determine if an habitual violent felony offender sentence is still appropriate absent the prior aggravated battery conviction. Chapter 89-280, Laws of Florida, amended section 775.084, the habitual offender provision, and made aggravated battery an offense which may be utilized in determining habitual offender status. In State v. Johnson, the Florida Supreme Court held that chapter 89-280 violated the one-subject rule of the Florida Constitution. Therefore a sentence as an habitual offender based on upon the 1989 amendments for a crime which was committed within the period of October 1, 1989, the effective date of the 1989 amendments to the habitual offender statute, to May 2, 1991, the date of the reenactment of the statute, is illegal. Appellant’s aggravated battery conviction falls within that time frame and therefore may not be used in determining appellant’s habitual offender status.
The state argues that this issue was not properly preserved for appeal. This argument was rejected in Claybourne v. State, 600 So. 2d 516 (Fla. 1st DCA 1992), approved, State v. Claybourne, 616 So. 2d 5 (Fla.1993), and Randall v. State, 601 So. 2d 644 (Fla. 1st DCA 1992).
Appellant’s habitual violent felony offender sentence is vacated, and the case is remanded for resentencing. In all other respects, the judgment of the trial court is affirmed.
BOOTH, KAHN and MICKLE, JJ., concur.
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Reinhardt Alexander Stubbs v. State, 673 So. 2d 964 (Fla. 1st DCA 1996)…impose habitual offender sentences based upon the 1989 amendments when imposing sentence for crimes committed after the invalid “window period,” if the predicate prior convicted offense was committed during the “window period.” See Donahue v. State, 616 So. 2d 65 (Fla. 1st DCA 1993). The Donahue panel vacated an habitual violent felony offender sentence based upon a January 1990 conviction for aggravated battery, and remanded the cause for a determination whether Donahue qualified for habitual violent felony…
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Goggins v. State, 623 So. 2d 590 (Fla. 2d DCA 1993)…tutional amendment’s addition of the offense of aggravated battery to those prior offenses which qualify a defendant for violent offender status. Resentencing is required. See Johnson; Gayman v. State, 616 So. 2d 17, 19 (Fla.1993); Donahue v. State, 616 So. 2d 65 (Fla. 1st DCA 1993); Lowe v. State, 612 So. 2d 625 (Fla. 1st DCA 1993). Goggins’ habitual violent felony offender sentence is vacated, and the case is remanded for resentencing in accordance with Johnson. In all other respects, the judgment of the…
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Johnson v. State, 616 So. 2d 169 (Fla. 4th DCA 1993)…is without prejudice to appellant’s filing a new 3.850 motion with a proper oath. Should such motion be filed, we would invite the trial court’s consideration of State v. Johnson, 616 So. 2d 1 (Fla.1993), as further discussed in Donahue v. State, 616 So. 2d 65 (Fla. 1st DCA 1993). HERSEY and POLEN, JJ., concur. FARMER, J., concurs in result only.…
Authorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)
- Claybourne v. State, 600 So. 2d 516 (Fla. 1st DCA 1992)
- Randall v. State, 601 So. 2d 644 (Fla. 1st DCA 1992)
- Venzal v. State, 601 So. 2d 644 (Fla. 3d DCA 1992)
- State v. Claybourne, 616 So. 2d 5 (Fla. 1993)