TERRY SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Smith appealed the summary denial of his motion to correct sentences imposed under the habitual offender statute. The court vacated his sentences because the 1989 amendments to the habitual offender statute were unconstitutional, and he was sentenced during the unconstitutional period using out-of-state convictions that would not have qualified him as a habitual offender under the pre-amendment law.
The court vacated Smith's sentences and remanded for resentencing because he was sentenced during the period when the 1989 amendments were unconstitutional, and the Georgia convictions used to establish habitual offender status would not have qualified under the pre-amendment law that prohibited using out-of-state felonies.
[1] A defendant sentenced between October 1, 1989, and May 2, 1991, must be resentenced if their sentence was affected by the unconstitutional 1989 amendments to the habitual…
[2] Prior to the 1989 amendments to the habitual offender statute, out-of-state felony convictions could not be used to habitualize a defendant.
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Join FLexlaw to unlock all legal intelligence“the 1989 amendments to the habitual offender statute were unconstitutional because they violated the single-subject requirement”
Establishes the constitutional defect in the amendments under which Smith was sentenced
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Join FLexlaw to unlock all legal intelligenceOn March 11, 1991, Smith received lengthy consecutive and concurrent prison sentences across five criminal cases totaling significant prison time for …
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PER CURIAM.
Smith appeals from an order summarily denying his motion to correct his sentences, pursuant to Florida Rule of Criminal Procedure 3.800(a). On March 11, 1991, he received lengthy prison sentences in five criminal cases 1 far beyond the applicable guidelines range. The trial court sentenced him as an habitual offender,2 based on two convictions in Georgia3 and a prior grand theft conviction in Florida. We vacate the sentences and remand for resentencing.
In State v. Johnson, 616 So. 2d 1 (Fla.1993), the Florida Supreme Court held that the 1989 amendments to the habitual offender statute were unconstitutional because they violated the single-subject requirement.4 Re-enactment of the 1989 amendments on May 2, 1991 cured this defect but defendants sentenced between October 1, 1989 and May 2, 1991, must be resentenced if the sentences were affected by the amendments.
Smith falls into this time warp. It further appears the 1989 amendments did affect his categorization as an habitual offender because prior to the 1989 amendments, a defendant could not be habitual-ized by using out-of-state felony convictions. Since the Georgia convictions were necessary in this case to support the requirement of two prior convictions,5 he could not have been sentenced as an habitual offender on March 11, 1991.
Accordingly, we vacate the sentences imposed in this case and remand for resentencing.
Sentences VACATED; REMANDED.
COBB, W. SHARP and THOMPSON, JJ., concur. . For two counts of sale and possession of cocaine (§ 893.13(l)(a), Fla.Stat. (1989), he was sentenced to fifteen years and ten years, consecutively; for possession of cocaine, two concurrent years; for aggravated assault, two concurrent years; for aiding and abetting the sale of cocaine, six concurrent years; and for sale of counterfeit cocaine, three concurrent years.
. § 775.084, Fla.Stat. (1989).
. Possession of a firearm by a convicted felon and possession of a sawed-off rifle.
. Fla. Const. Art. Ill, § 6.
. § 775.084(l)(a)l, Fla.Stat. (Supp.1988) provides:
‘Habitual felony offender’ means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has previously been convicted of two or more felonies in this state; ... (emphasis added).
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Hall v. State, 738 So. 2d 1031 (Fla. 5th DCA 1999)…PER CURIAM. AFFIRMED. See State v. Johnson, 616 So. 2d 1 (Fla.1993); Valdes v. State, 728 So. 2d 1225 (Fla. 3d DCA 1999); Smith v. State, 616 So. 2d 1116 (Fla. 5th DCA 1993). DAUKSCH, W. SHARP, and HARRIS, JJ., concur.…
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Rigby v. State, 176 So. 3d 1016 (Fla. 5th DCA 2015)…7 (Fla.2001) (holding that where it is apparent on the face of the record that the necessary predicate offenses to qualify a defendant as a habitual felony offender do not exist, the error may be corrected pursuant to rule 3.800(a)); Smith v. State, 616 So. 2d 1116, 1117 (Fla. 5th DCA 1993) (vacating and remanding for resentencing after successful 3.800(a) appeal challenging habitual offender sentence). We note that the State concedes error. REVERSED and REMANDED. LAWSON, C.J., SAWAYA and EDWARDS, JJ., con…
Authorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)